Same-sex partner of deceased taxpayer who was lawful spouse of taxpayer under New York law qualifies as taxpayer's legal spouse for purposes of federal estate tax exemption favoring surviving spouses, where spouse sued federal government under Equal Protection Clause after taxpayer died, where spouse argued that Section 3 of federal Defense of Marriage Act was unconstitutional, since this provision of DOMA was unconstitutional as deprivation of equal liberty of persons that was protected by Fifth Amendment, since definition and regulation of marriage has been treated as being within states'
authority, since DOMA rejected this long-established practice, since injury and indignity resulting from application of DOMA was deprivation of essential liberty protected by Fifth Amendment, since New York's actions were proper exercise of its sovereign authority in this realm, since DOMA violated basic due process and equal protection principles applicable to federal government, since DOMA's principal effect was to identify and make unequal subset of state-sanctioned marriage, and since contested DOMA provision was unconstitutional.

Section 3 of Defense of Marriage Act—which defines “marriage” as only between “one man and one woman,” which defines “spouse” only as “person of the opposite sex who is a husband or a wife,” and which operates to deny marital exemption to federal estate tax and other benefits of federal law to same-sex married couples—violates basic due process and equal protection principles applicable to federal government, where, among other things, DOMA's avowed purpose and practical effect are to impose disadvantage, separate status, and stigma upon all who enter into same-sex marriages made lawful by unquestioned authority of the states.

Section 3 of Defense of Marriage Act—which defines “marriage” as only between “one man and one woman,” which defines “spouse” only as “person of the opposite sex who is a husband or a wife,” and which operates to deny marital exemption to federal estate tax and other benefits of federal law to same-sex married couples—is unconstitutional deprivation of liberty protected by Fifth Amendment's due process clause, including its prohibition against denying any person equal protection of the laws, where, among other things, no legitimate purpose overcomes DOMA's purpose and effect to disparage and injure those whom state by its marriage laws sought to protect in personhood and dignity.

Syllabus

The State of New York recognizes the marriage of New York residents Edith
Windsor and Thea Spyer, who wed in Ontario, Canada, in 2007. When Spyer died
in 2009, she left her entire estate to Windsor. Windsor sought to claim the
federal estate tax exemption for surviving spouses, but was barred from
doing so by § 3 of the federal Defense of Marriage Act (DOMA), which amended
the Dictionary Act — a law providing rules of construction for over 1,000
federal laws and the whole realm of federal regulations — to define
"marriage" and "spouse" as excluding same-sex partners. Windsor paid
$363,053 in estate taxes and sought a refund, which the Internal Revenue
Service denied. Windsor brought this refund suit, contending that DOMA
violates the principles of equal protection incorporated in the Fifth
Amendment. While the suit was pending, the Attorney General notified the
Speaker of the House of Representatives that the Department of Justice would
no longer defend § 3's constitutionality. In response, the Bipartisan Legal
Advisory Group (BLAG) of the House of Representatives voted to intervene in
the litigation to defend § 3's constitutionality. The District Court
permitted the intervention. On the merits, the court ruled against the
United States, finding § 3 unconstitutional and ordering the Treasury to
refund Windsor's tax with interest. The Second Circuit affirmed. The United
States has not complied with the judgment.

Held:

1. This Court has jurisdiction to consider the merits of the case. This case
clearly presented a concrete disagreement between opposing parties that was
suitable for judicial resolution in the District Court, but the Executive's
decision not to defend § 3's constitutionality
in court while continuing to deny refunds and assess deficiencies introduces
a complication. Given the Government's concession, amicus contends, once the
District Court ordered the refund, the case should have ended and the appeal
been dismissed. But this argument elides the distinction between Article
III's [*2680] jurisdictional requirements and the prudential limits on its exercise,
which are "essentially matters of judicial self-governance." Warth v.
Seldin, 422 U. S. 490, 500. Here, the United States retains a stake
sufficient to support Article III jurisdiction on appeal and in this Court.
The refund it was ordered to pay Windsor is "a real and immediate economic
injury," Hein v. Freedom From Religion Foundation, Inc., 551 U. S. 587, 599,
even if the Executive disagrees with § 3 of DOMA. Windsor's ongoing claim
for funds that the United States refuses to pay thus establishes a
controversy sufficient for Article III jurisdiction. Cf. INS v. Chadha,
462 U. S. 919.

Prudential considerations, however, demand that there be "concrete
adverseness which sharpens the presentation of issues upon which [***2] the court
so largely depends for illumination of difficult constitutional questions."
Baker v. Carr, 369 U. S. 186, 204. Unlike Article III requirements — which
must be satisfied by the parties before judicial consideration is
appropriate — prudential factors that counsel against hearing this case are
subject to "countervailing considerations [that] may outweigh the concerns
underlying the usual reluctance to exert [**814] judicial power." Warth, supra, at
500-501. One such consideration is the extent to which adversarial
presentation of the issues is ensured by the participation of amici curiae
prepared to defend with vigor the legislative act's constitutionality. See
Chadha, supra, at 940. Here, BLAG's substantial adversarial argument for §
3's constitutionality satisfies prudential concerns that otherwise might
counsel against hearing an appeal from a decision with which the principal
parties agree. This conclusion does not mean that it is appropriate for the
Executive as a routine exercise to challenge statutes in court instead of
making the case to Congress for amendment or repeal. But this case is not
routine, and BLAG's capable defense ensures that the prudential issues do
not cloud the merits question, which is of immediate importance to the
Federal Government and to hundreds of thousands of persons. Pp. 5-13.

2. DOMA is unconstitutional as a deprivation of the equal liberty of persons
that is protected by the Fifth Amendment. Pp. 13-26.

(a) By history and tradition the definition and regulation of marriage has
been treated as being within the authority and realm of the separate States.
Congress has enacted discrete statutes to regulate the meaning of marriage
in order to further federal policy, but DOMA, with a directive applicable to
over 1,000 federal statutes and
the whole realm of federal regulations, has a far greater reach. Its
operation is also directed to a class of persons that the laws of New York,
and of 11 other States, have sought to protect. Assessing the validity of
that intervention requires discussing the historical and traditional extent
of state power and authority over marriage.

Subject to certain constitutional guarantees, see, e.g., Loving v. Virginia,
388 U. S. 1, "regulation of domestic relations" is "an area that has long
been regarded as a virtually exclusive province of the States," Sosna v.
Iowa, 419 U. S. 393, 404. The significance of state responsibilities for the
definition and regulation of marriage dates to the Nation's beginning; for
"when the Constitution was adopted the common understanding was that the
domestic relations of husband and wife and parent and child were matters
reserved to the States," [*2681]Ohio ex rel. Popovici v. Agler, 280 U. S. 379,
383-384. Marriage laws may vary from State to State, but they are consistent
within each State.

DOMA rejects this long-established precept. The State's decision to give
this class of persons the right to marry conferred upon them a dignity and
status of immense import. But the Federal Government uses the state-defined
class for the opposite purpose — to impose restrictions and disabilities.
The question is [***3] whether the resulting injury and indignity is a deprivation
of an essential part of the liberty protected by the Fifth Amendment, since
what New York treats as alike the federal law deems unlike by a law designed
to injure the same class the State seeks to protect. New York's actions were
a proper exercise of its sovereign authority. They reflect both the
community's considered perspective on the historical roots of the
institution of marriage and its evolving [**815] understanding of the meaning of
equality. Pp. 13-20.

(b) By seeking to injure the very class New York seeks to protect, DOMA
violates basic due process and equal protection principles applicable to the
Federal Government. The Constitution's guarantee of equality "must at the
very least mean that a bare congressional desire to harm a politically
unpopular group cannot" justify disparate treatment of that group.
Department of Agriculture v. Moreno, 413 U. S. 528, 534-535. DOMA cannot
survive under these principles. Its unusual deviation from the tradition of
recognizing and accepting state definitions of marriage operates to deprive
same-sex couples of the benefits and responsibilities that come with federal
recognition of their marriages. This is strong evidence of a law having the
purpose and effect of disapproval of a class recognized and protected by
state law. DOMA's avowed purpose and practical effect are to impose a
disadvantage, a separate status, and so a stigma upon all who enter into
same-sex marriages made lawful by the unquestioned authority
of the States.

DOMA's history of enactment and its own text demonstrate that interference
with the equal dignity of same-sex marriages, conferred by the States in the
exercise of their sovereign power, was more than an incidental effect of the
federal statute. It was its essence. BLAG's arguments are just as candid
about the congressional purpose. DOMA's operation in practice confirms this
purpose. It frustrates New York's objective of eliminating inequality by
writing inequality into the entire United States Code.

DOMA's principal effect is to identify and make unequal a subset of
state-sanctioned marriages. It contrives to deprive some couples married
under the laws of their State, but not others, of both rights and
responsibilities, creating two contradictory marriage regimes within the
same State. It also forces same-sex couples to live as married for the
purpose of state law but unmarried for the purpose of federal law, thus
diminishing the stability and predictability of basic personal relations the
State has found it proper to acknowledge and protect. Pp. 20-26.

KENNEDY, J., delivered the opinion of the Court, in which GINSBURG, BREYER,
SOTOMAYOR, and KAGAN, JJ., joined. ROBERTS, C. J., filed a dissenting
opinion. SCALIA, J., filed a dissenting opinion, in which THOMAS, J.,
joined, and in which ROBERTS, C. J., joined as to Part I. ALITO, J., filed a
dissenting opinion, in which THOMAS, J., joined as to Parts II and III.
[*2682]

JUSTICE KENNEDY delivered the opinion of the Court.

Two women then resident in New York were married in a lawful ceremony [***4] in
Ontario, Canada, in 2007. Edith Windsor and Thea Spyer returned to their
home in New York City. When Spyer died in 2009, she left her entire estate
to Windsor. Windsor sought to claim the estate tax exemption for surviving
spouses. She was barred from doing so, however, by a federal law, the
Defense of Marriage Act, which excludes a same-sex [**816] partner from the
definition of "spouse" as that term is used in federal statutes. Windsor
paid the taxes but filed suit to challenge the constitutionality of this
provision. The United States District Court and the Court of Appeals ruled
that this portion of the statute is unconstitutional and ordered the United
States to pay Windsor a refund. This Court granted certiorari and now
affirms the judgment in Windsor's favor.

I

In 1996, as some States were beginning to consider the concept of same-sex
marriage, see, e.g., Baehr v. Lewin, 74 Haw. 530, 852 P. 2d 44 (1993),
and before any State had acted to permit it, Congress enacted the Defense of
Marriage Act (DOMA), 110 Stat. 2419. DOMA contains two operative sections:
Section 2, which has not been challenged here, allows States to refuse to
recognize same-sex [*2683] marriages performed under the laws of other States. See
28 U. S. C. § 1738C. Section 3 is at issue here. It amends the Dictionary
Act in Title 1, § 7, of the United States Code to provide a federal
definition of "marriage" and "spouse." Section 3 of DOMA provides as
follows:

"In determining the meaning of any Act of Congress, or of any
ruling, regulation, or interpretation of the various administrative
bureaus and agencies of the United States, the word `marriage' means
only a legal union between one man and one woman as husband and
wife, and the word `spouse' refers only to a person of the opposite
sex who is a husband or a wife." 1 U. S. C. § 7.

The definitional provision does not by its terms forbid States from
enacting laws permitting same-sex marriages or civil unions or providing
state benefits to residents in that status. The enactment's comprehensive
definition of marriage for purposes of all federal statutes and other
regulations or directives covered by its terms, however, does control over
1,000 federal laws in which marital or spousal status is addressed as a
matter of federal law. See GAO, D. Shah, Defense of Marriage Act: Update to
Prior Report 1 (GAO-04-353R, 2004).

Edith Windsor and Thea Spyer met in New York City in 1963 and began a
long-term relationship. Windsor and Spyer registered as domestic partners
when New York City gave that right to same-sex couples in 1993. Concerned
about Spyer's health, the couple made the 2007 trip to Canada for their
marriage, but they continued to reside
in New York City. The State of New York deems their Ontario marriage to be a
valid one. See 699 F. 3d 169, 177-178 (CA2 2012).

Spyer died in February 2009, and left her entire estate to Windsor.
Because DOMA denies federal recognition to same-sex spouses, Windsor did not
qualify for the marital exemption from the federal estate tax, which
excludes from taxation "any interest in property which passes or has passed
from the decedent to his surviving spouse." 26 U. S. C. § 2056(a). Windsor
paid $363,053 in estate taxes and sought a refund. The Internal Revenue
[***5] Service denied the refund, concluding that, under DOMA, Windsor was not a
"surviving spouse." Windsor commenced this refund suit in the United States
District Court for the Southern District of New York. She contended that
DOMA violates the guarantee of equal protection, as applied to the Federal
Government through the Fifth Amendment.
[**817]

While the tax refund suit was pending, the Attorney General of the United
States notified the Speaker of the House of Representatives, pursuant to
28 U. S. C. § 530D, that the Department of Justice would no longer defend
the constitutionality of DOMA's § 3. Noting that "the Department has
previously defended DOMA against . . . challenges involving legally married
same-sex couples," App. 184, the Attorney General informed Congress that
"the President has concluded that given a number of factors, including a
documented history of discrimination, classifications based on sexual
orientation should be subject to a heightened standard of scrutiny." Id., at
191. The Department of Justice has submitted many § 530D letters over the
years refusing to defend laws it deems unconstitutional, when, for instance,
a federal court has rejected the Government's defense of a statute and has
issued a judgment against it. This case is unusual, however, because the §
530D letter was not preceded by an adverse
judgment. The letter instead reflected the Executive's own conclusion,
relying on a definition still being debated and considered in the courts,
that heightened equal protection [*2684] scrutiny should apply to laws that classify
on the basis of sexual orientation.

Although "the President . . . instructed the Department not to defend the
statute in Windsor," he also decided "that Section 3 will continue to be
enforced by the Executive Branch" and that the United States had an
"interest in providing Congress a full and fair opportunity to participate
in the litigation of those cases." Id., at 191-193. The stated rationale for
this dual-track procedure (determination of unconstitutionality coupled with
ongoing enforcement) was to "recogniz[e] the judiciary as the final arbiter
of the constitutional claims raised." Id., at 192.

In response to the notice from the Attorney General, the Bipartisan Legal
Advisory Group (BLAG) of the House of Representatives voted to intervene in
the litigation to defend the constitutionality of § 3 of DOMA. The
Department of Justice did not oppose limited intervention by BLAG. The
District Court denied BLAG's motion to enter the suit as of right, on the
rationale that the United States already was represented by the Department
of Justice. The District Court, however, did grant intervention by BLAG as
an interested party. See Fed. Rule Civ. Proc. 24(a)(2).

On the merits of the tax refund suit, the District Court ruled against the
United States. It held that § 3 of DOMA is unconstitutional and ordered the
Treasury to refund the tax with interest. Both the Justice Department and
BLAG filed notices of appeal, and the Solicitor General filed a petition for
certiorari before judgment. Before this Court acted on the petition, the
Court [***6] of Appeals for the Second Circuit affirmed the District Court's
judgment. It applied heightened scrutiny to classifications based on sexual
orientation, as both the Department and Windsor had
urged. The United States has not complied with the judgment. Windsor has not
received her refund, and the Executive Branch continues to enforce § 3 of
DOMA.

In granting certiorari on the question of the constitutionality of § 3 of
DOMA, the Court requested argument on two additional questions: whether the
United States' agreement with Windsor's legal position [**818] precludes further
review and whether BLAG has standing to appeal the case. All parties agree
that the Court has jurisdiction to decide this case; and, with the case in
that framework, the Court appointed Professor Vicki Jackson as amicus curiae
to argue the position that the Court lacks jurisdiction to hear the dispute.
568 U. S. ___ (2012). She has ably discharged her duties.

In an unrelated case, the United States Court of Appeals for the First
Circuit has also held § 3 of DOMA to be unconstitutional. A petition for
certiorari has been filed in that case. Pet. for Cert. in Bipartisan LegalAdvisory Group v. Gill, O. T. 2012, No. 12-13.

II

It is appropriate to begin by addressing whether either the Government or
BLAG, or both of them, were entitled to appeal to the Court of Appeals and
later to seek certiorari and appear as parties here.

There is no dispute that when this case was in the District Court it
presented a concrete disagreement between opposing parties, a dispute
suitable for judicial resolution. "[A] taxpayer has standing to challenge
the collection of a specific tax assessment as unconstitutional; being
forced to pay such a tax causes a real and immediate economic injury to the
individual taxpayer." Hein v. Freedom From Religion Foundation, Inc.,
551 U. S. 587, 599 (2007) (plurality [*2685] opinion) (emphasis deleted). Windsor
suffered a redressable injury when she was required to pay estate taxes from
which, in her view, she was exempt
but for the alleged invalidity of § 3 of DOMA.

The decision of the Executive not to defend the constitutionality of § 3
in court while continuing to deny refunds and to assess deficiencies does
introduce a complication. Even though the Executive's current position was
announced before the District Court entered its judgment, the Government's
agreement with Windsor's position would not have deprived the District Court
of jurisdiction to entertain and resolve the refund suit; for her injury
(failure to obtain a refund allegedly required by law) was concrete,
persisting, and unredressed. The Government's position — agreeing with
Windsor's legal contention but refusing to give it effect — meant that there
was a justiciable controversy between the parties, despite what the claimant
would find to be an inconsistency in that stance. Windsor, the Government,
BLAG, and the amicus appear to agree upon that point. The disagreement is
over the standing of the parties, or aspiring parties, to take an appeal in
the Court of Appeals and to appear as parties in further proceedings in this
Court.

The [***7]amicus' position is that, given the Government's concession that § 3
is unconstitutional, once the District Court ordered the refund the case
should have ended; and the amicus argues the Court of Appeals should have
dismissed the appeal. The amicus submits that once the President agreed with
Windsor's legal position and the District Court issued its judgment, the
parties were no longer adverse. From this standpoint the United States was a
prevailing party below, just as Windsor was. Accordingly, the amicus
reasons, it is inappropriate for this Court to grant certiorari and proceed
to rule on the [**819] merits; for the United States seeks no redress from the
judgment entered against it.

"First, the plaintiff must have suffered an `injury in fact' — an
invasion of a legally protected interest which is (a) concrete and
particularized, and (b) `actual or imminent, not "conjectural or
hypothetical."' Second, there must be a causal connection between
the injury and the conduct complained of — the injury has to be
`fairly . . . trace[able] to the challenged action of the defendant,
and not . . . th[e] result [of] the independent action of some third
party not before the court.' Third, it must be `likely,' as opposed
to merely `speculative,' that the injury will be `redressed by a
favorable decision.'" Lujan, supra, at 560-561 ([*2686] footnote and
citations omitted).

Rules of prudential standing, by contrast, are more flexible "rule[s] . . .
of federal appellate practice," Deposit Guaranty Nat. Bank v. Roper,
445 U. S. 326, 333 (1980), designed to protect the courts from "decid[ing]
abstract questions of wide public significance even [when] other
governmental institutions may be more competent to address the questions and
even though judicial intervention may be unnecessary to protect individual
rights." Warth, supra, at 500.

In this case the United States retains a stake sufficient to support
Article III jurisdiction on appeal and in proceedings
before this Court. The judgment in question orders the United States to pay
Windsor the refund she seeks. An order directing the Treasury to pay money
is "a real and immediate economic injury," Hein, 551 U. S. ___, at 599,
indeed as real and immediate as an order directing an individual to pay a
tax. That the Executive may welcome this order to pay the refund if it is
accompanied by the constitutional ruling it wants does not eliminate the
injury to the national Treasury if payment is made, or to the taxpayer if it
is [***8] not. The judgment orders the United States to pay money that it would not
disburse but for the court's order. The Government of the United States has
a valid legal argument that it is injured even if the Executive disagrees
with § 3 of DOMA, which results in Windsor's liability for the tax.
Windsor's ongoing claim for funds that the United States refuses to pay thus
establishes a controversy sufficient for Article III jurisdiction. [**820] It would
be a different case if the Executive had taken the further step of paying
Windsor the refund to which she was entitled under the District Court's
ruling.

This Court confronted a comparable case in INS v. Chadha, 462 U. S. 919
(1983). A statute by its terms allowed one House of Congress to order the
Immigration and Naturalization Service (INS) to deport the respondent
Chadha. There, as here, the Executive determined that the statute was
unconstitutional, and "the INS presented the Executive's views on the
constitutionality of the House action to the Court of Appeals." Id., at 930.
The INS, however, continued to abide by the statute, and "the INS brief to
the Court of Appeals did not alter the agency's decision to comply with the
House action ordering deportation of Chadha." Ibid. This Court held "that
the INS was sufficiently aggrieved by the Court of Appeals decision
prohibiting it from taking action it would otherwise take," ibid.,
regardless of whether the agency welcomed the judgment. The necessity of a
"case or controversy" to
satisfy Article III was defined as a requirement that the Court's "`decision
will have real meaning: if we rule for Chadha, he will not be deported; if
we uphold [the statute], the INS will execute its order and deport him.'"
Id., at 939-940 (quoting Chadha v. INS, 634 F. 2d 408, 419 (CA9 1980)). This
conclusion was not dictum. It was a necessary predicate to the Court's
holding that "prior to Congress' intervention, there was adequate Art. III
ad-verseness." 462 U. S. ___, at 939. The holdings of cases are instructive,
and the words of Chadha make clear its holding that the refusal of the
Executive to provide the relief sought suffices to preserve a justiciable
dispute as required by Article III. In short, even where "the Government
largely agree[s] with the opposing party on the merits of the controversy,"
there is sufficient adverseness and an "adequate basis for jurisdiction in
the fact that the Government [*2687] intended to enforce the challenged law against
that party." Id., at 940, n. 12.

It is true that "[a] party who receives all that he has sought generally
is not aggrieved by the judgment affording the relief and cannot appeal from
it." Roper, supra, at 333, see also Camreta v. Greene, 563 U. S. ___, ___
(2011) (slip op., at 8) ("As a matter of practice and prudence, we have
generally declined to consider cases at the request of a prevailing party,
even when the Constitution allowed us to do so"). But this rule "does not
have its source in the jurisdictional limitations of Art. III. In an
appropriate case, appeal may be permitted . . . at the behest of the party
who has prevailed on the merits, so long as that party retains a stake in
the appeal satisfying the requirements of Art. III." Roper, supra, at
333-334[***9] .

While these principles suffice to show that this case presents a
justiciable controversy under Article III, the prudential problems inherent
in the Executive's unusual position require some further discussion. The
Executive's agreement with Windsor's legal argument raises the risk
that instead of a "`real, earnest and vital controversy,'" the Court faces a
"friendly, non-adversary, proceeding . . . [[**821] in which] `a party beaten in the
legislature [seeks to] transfer to the courts an inquiry as to the
constitutionality of the legislative act.'" Ashwander v. TVA, 297 U. S. 288,
346 (1936) (Brandeis, J., concurring) (quoting Chicago & Grand Trunk R. Co.
v. Wellman, 143 U. S. 339, 345 (1892)). Even when Article III permits the
exercise of federal jurisdiction, prudential considerations demand that the
Court insist upon "that concrete adverseness which sharpens the presentation
of issues upon which the court so largely depends for illumination of
difficult constitutional questions." Baker v. Carr, 369 U. S. 186, 204
(1962).

There are, of course, reasons to hear a case and issue a ruling even when
one party is reluctant to prevail in its position. Unlike Article III
requirements — which must be satisfied by the parties before judicial
consideration is appropriate — the relevant prudential factors that counsel
against hearing this case are subject to "countervailing considerations
[that] may outweigh the concerns underlying the usual reluctance to exert
judicial power." Warth, 422 U. S., at 500-501. One consideration is the
extent to which adversarial presentation of the issues is assured by the
participation of amici curiae prepared to defend with vigor the
constitutionality of the legislative act. With respect to this prudential
aspect of standing as well, the Chadha Court encountered a similar
situation. It noted that "there may be prudential, as opposed to Art. III,
concerns about sanctioning the adjudication of [this case] in the absence of
any participant supporting the validity of [the statute]. The Court of
Appeals properly dispelled any such concerns by inviting and accepting
briefs from both Houses of Congress." 462 U. S., at 940. Chadha was not an
anomaly in this respect. The Court adopts the practice of entertaining
arguments made by an amicus when the
Solicitor General confesses error with respect to a judgment below, even if
the confession is in effect an admission that an Act of Congress is
unconstitutional. See, e.g., Dickerson v. United States, 530 U. S. 428
(2000).

In the case now before the Court the attorneys for BLAG present a
substantial argument for the constitutionality of § 3 of [*2688] DOMA. BLAG's sharp
adversarial presentation of the issues satisfies the prudential concerns
that otherwise might counsel against hearing an appeal from a decision with
which the principal parties agree. Were this Court to hold that prudential
rules require it to dismiss the case, and, in consequence, that the Court of
Appeals erred in failing to dismiss it as well, extensive litigation would
ensue. The district courts in 94 districts throughout the Nation would be
without precedential guidance not only in tax refund suits but also in cases
[***10] involving the whole of DOMA's sweep involving over 1,000 federal statutes
and a myriad of federal regulations. For instance, the opinion of the Court
of Appeals for the First Circuit, addressing the validity of DOMA in a case
involving regulations of the Department of Health and Human Services, likely
would be vacated with instructions to dismiss, its ruling and guidance also
then erased. See Massachusetts v. United States Dept. of Health and HumanServs., 682 F. 3d 1 (CA1 2012). Rights and [**822] privileges of hundreds of
thousands of persons would be adversely affected, pending a case in which
all prudential concerns about justiciability are absent. That numerical
prediction may not be certain, but it is certain that the cost in judicial
resources and expense of litigation for all persons adversely affected would
be immense. True, the very extent of DOMA's mandate means that at some point
a case likely would arise without the prudential concerns raised here; but
the costs, uncertainties, and alleged harm and injuries likely would
continue for a time measured in years before the issue is resolved. In these
unusual and urgent circumstances,
the very term "prudential" counsels that it is a proper exercise of the
Court's responsibility to take jurisdiction. For these reasons, the
prudential and Article III requirements are met here; and, as a consequence,
the Court need not decide whether BLAG would have standing to challenge the
District Court's ruling and its affirmance in the Court of Appeals on BLAG's
own authority.

The Court's conclusion that this petition may be heard on the merits does
not imply that no difficulties would ensue if this were a common practice in
ordinary cases. The Executive's failure to defend the constitutionality of
an Act of Congress based on a constitutional theory not yet established in
judicial decisions has created a procedural dilemma. On the one hand, as
noted, the Government's agreement with Windsor raises questions about the
propriety of entertaining a suit in which it seeks affirmance of an order
invalidating a federal law and ordering the United States to pay money. On
the other hand, if the Executive's agreement with a plaintiff that a law is
unconstitutional is enough to preclude judicial review, then the Supreme
Court's primary role in determining the constitutionality of a law that has
inflicted real injury on a plaintiff who has brought a justiciable legal
claim would become only secondary to the President's. This would undermine
the clear dictate of the separation-of-powers principle that "when an Act of
Congress is alleged to conflict with the Constitution, `[i]t is emphatically
the province and duty of the judicial department to say what the law is.'"
Zivotofsky v. Clinton, 566 U. S. ___, ___ (2012) (slip op., at 7) (quoting
Marbury v. Madison, 1 Cranch 137, 177 (1803)). Similarly, with respect to
the legislative power, when Congress has passed a statute and a President
has signed it, it poses grave challenges to the separation of powers for the
Executive at a particular moment to be able to nullify Congress' enactment
[***11] solely on its own initiative and without any determination from the Court.
[*2689]

The Court's jurisdictional holding, it must be underscored, does not mean
the arguments for dismissing this dispute on prudential grounds lack
substance. Yet the difficulty the Executive faces should be acknowledged.
When the Executive makes a principled determination that a statute is
unconstitutional, it faces a difficult choice. Still, there is no suggestion
here that it is appropriate for the Executive as a matter of course to
challenge statutes in the judicial forum rather than making the case to
Congress for their amendment or repeal. The integrity of the political
process would be at risk if difficult constitutional issues were simply
referred to the Court as a routine exercise. But this case is not routine.
And the capable defense of the law by [**823] BLAG ensures that these prudential
issues do not cloud the merits question, which is one of immediate
importance to the Federal Government and to hundreds of thousands of
persons. These circumstances support the Court's decision to proceed to the
merits.

III

[1] When at first Windsor and Spyer longed to marry, neither New York nor any
other State granted them that right. After waiting some years, in 2007 they
traveled to Ontario to be married there. It seems fair to conclude that,
until recent years, many citizens had not even considered the possibility
that two persons of the same sex might aspire to occupy the same status and
dignity as that of a man and woman in lawful marriage. For marriage between
a man and a woman no doubt had been thought of by most people as essential
to the very definition of that term and to its role and function throughout
the history of civilization. That belief, for many who long have held it,
became even more urgent, more cherished when challenged. For others,
however, came the beginnings of a new perspective, a new insight.
Accordingly some States
concluded that same-sex marriage ought to be given recognition and validity
in the law for those same-sex couples who wish to define themselves by their
commitment to each other. The limitation of lawful marriage to heterosexual
couples, which for centuries had been deemed both necessary and fundamental,
came to be seen in New York and certain other States as an unjust exclusion.

Slowly at first and then in rapid course, the laws of New York came to
acknowledge the urgency of this issue for same-sex couples who wanted to
affirm their commitment to one another before their children, their family,
their friends, and their community. And so New York recognized same-sex
marriages performed elsewhere; and then it later amended its own marriage
laws to permit same-sex marriage. New York, in common with, as of this
writing, 11 other States and the District of Columbia, decided that same-sex
couples should have the right to marry and so live with pride in themselves
and their union and in a status of equality with all other married persons.
After a statewide deliberative process that enabled its citizens to discuss
and weigh [***12] arguments for and against same-sex marriage, New York acted to
enlarge the definition of marriage to correct what its citizens and elected
representatives perceived to be an injustice that they had not earlier known
or understood. See Marriage Equality Act, 2011 N. Y. Laws 749 (codified at
N. Y. Dom. Rel. Law Ann. §§ 10-a,10-b, 13 (West 2013)).

Against this background of lawful same-sex marriage in some States, the
design, purpose, and effect of DOMA should be considered as the beginning
point in deciding whether it is valid under the Constitution. By history and
tradition the definition and regulation of marriage, as will be discussed in
more detail, has [*2690] been treated as being within the authority and realm of the
separate States. Yet it is further established that Congress, in enacting
discrete
statutes, can make determinations that bear on marital rights and
privileges. Just this Term the Court upheld the authority of the Congress to
pre-empt state laws, allowing a former spouse to retain life insurance
proceeds under a federal program that gave her priority, because of formal
beneficiary [**824] designation rules, over the wife by a second marriage who
survived the husband. Hillman v. Maretta, 569 U. S. ___ (2013); see also
Ridgway v. Ridgway, 454 U. S. 46 (1981); Wissner v. Wissner, 338 U. S. 655
(1950). This is one example of the general principle that when the Federal
Government acts in the exercise of its own proper authority, it has a wide
choice of the mechanisms and means to adopt. See McCulloch v. Maryland,
4 Wheat. 316, 421 (1819). Congress has the power both to ensure efficiency
in the administration of its programs and to choose what larger goals and
policies to pursue.

Other precedents involving congressional statutes which affect marriages
and family status further illustrate this point. In addressing the
interaction of state domestic relations and federal immigration law Congress
determined that marriages "entered into for the purpose of procuring an
alien's admission [to the United States] as an immigrant" will not qualify
the noncitizen for that status, even if the noncitizen's marriage is valid
and proper for state-law purposes. 8 U. S. C. § 1186a(b)(1) (2006 ed. and
Supp. V). And in establishing income-based criteria for Social Security
benefits, Congress decided that although state law would determine in
general who qualifies as an applicant's spouse, common-law marriages also
should be recognized, regardless of any particular State's view on these
relationships. 42 U. S. C. § 1382c(d)(2).

In order to assess the validity of that intervention it is necessary to
discuss the extent of the state power and authority over marriage as a
matter [**825] of history and tradition. State laws defining and regulating
marriage, of course, must respect the constitutional rights of persons, see,
e.g., Loving v. Virginia, 388 U. S. 1 (1967); but, subject to those
guarantees, "regulation of domestic relations" is "an area that has long
been regarded as a virtually exclusive province of the States." Sosna v.
Iowa, 419 U. S. 393, 404 (1975).

The recognition of civil marriages is central to state domestic relations
law applicable to its residents and citizens. See Williams v. NorthCarolina, 317 U. S. 287, 298 (1942) ("Each state as a sovereign has a
rightful and legitimate concern in the marital status of persons domiciled
within its borders"). The definition of marriage is the foundation of the
State's broader authority to regulate the subject of domestic relations with
respect to the "[p]rotection of offspring, property interests, and the
enforcement of marital responsibilities." Ibid. "[T]he states, at the time
of the adoption of the Constitution, possessed full power over the subject
of marriage and divorce . . . [and] the Constitution delegated no authority
to the Government of the United States on the subject of marriage and
divorce." Haddock v. Haddock, 201 U. S. 562, 575 (1906); see also In reBurrus, 136 U. S. 586, 593-594 (1890) ("The whole subject of the domestic
relations of husband and wife, parent and child, belongs to the laws of the
States and not to the laws of the United States").

Consistent with this allocation of authority, the Federal Government,
through our history, has deferred to state-law policy decisions with respect
to domestic relations. In De Sylva v. Ballentine, 351 U. S. 570 (1956), for
example, the Court held that, "[t]o decide who is the widow or widower of a
deceased author, or who are his executors or next of kin," under the
Copyright Act "requires a reference to the law of the State which created
those legal relationships" because "there is no federal law of domestic
relations." Id., at 580. In order to respect this principle, the federal
courts, as a general rule, do not adjudicate issues of marital status even
when there might otherwise be a basis for federal [***14] jurisdiction. See
Ankenbrandt v. Richards, 504 U. S. 689, 703 (1992). Federal courts will not
hear divorce and custody cases even if they arise in diversity because of
"the virtually exclusive primacy . . . of the
States in the regulation of domestic relations." Id., at 714 (Blackmun, J.,
concurring in judgment).

The significance of state responsibilities for the definition and
regulation of marriage dates to the Nation's beginning; for "when the
Constitution was adopted the common understanding was that the domestic
relations of husband and wife and parent and child were matters reserved to
the States." Ohio ex rel. Popovici v. Agler, 280 U. S. 379, 383-384 (1930).
Marriage laws vary in some respects from State to State. For example, the
required minimum age is 16 in Vermont, but only 13 in New Hampshire. Compare
Vt. Stat. Ann., Tit. 18, § 5142 (2012), with N. H. Rev. Stat. Ann. § 457:4
(West Supp. 2012). Likewise the permissible degree of consanguinity can [**826] vary
(most States permit first cousins to marry, but a handful — such as Iowa and
Washington, see Iowa Code § 595.19 (2009); Wash. Rev. Code § 26.04.020
([*2692] 2012) — prohibit the practice). But these rules are in every event
consistent within each State.

Against this background DOMA rejects the long-established precept that the
incidents, benefits, and obligations of marriage are uniform for all married
couples within each State, though they may vary, subject to constitutional
guarantees, from one State to the next. Despite these considerations, it is
unnecessary to decide whether this federal intrusion on state power is a
violation of the Constitution because it disrupts the federal balance. The
State's power in defining the marital relation is of central relevance in
this case quite apart from principles of federalism. Here the State's
decision to give this class of persons the right to marry conferred upon
them a dignity and status of immense import. When the State used its
historic and essential authority to define the marital relation in this way,
its role and its power in making the decision enhanced the recognition,
dignity, and protection of the class in their own community. DOMA, because
of
its reach and extent, departs from this history and tradition of reliance on
state law to define marriage. "`[D]is-criminations of an unusual character
especially suggest careful consideration to determine whether they are
obnoxious to the constitutional provision.'" Romer v. Evans, 517 U. S. 620,
633 (1996) (quoting Louisville Gas & Elec. Co. v. Coleman, 277 U. S. 32,
37-38 (1928)).

The Federal Government uses this state-defined class for the opposite
purpose — to impose restrictions and disabilities. That result requires this
Court now to address whether the resulting injury and indignity is a
deprivation of an essential part of the liberty protected by the Fifth
Amendment. What the State of New York treats as alike the federal law deems
unlike by a law designed to injure the same class the State seeks to
protect.

In acting first to recognize and then to allow same-sex marriages, New
York was responding "to the initiative of those who [sought] a voice in
shaping the destiny of their own times." Bond v. United States,
564 U. S. ___, ___ (2011) (slip op., at 9). These [***15] actions were without doubt
a proper exercise of its sovereign authority within our federal system, all
in the way that the Framers of the Constitution intended. The dynamics of
state government in the federal system are to allow the formation of
consensus respecting the way the members of a discrete community treat each
other in their daily contact and constant interaction with each other.

The States' interest in defining and regulating the marital relation,
subject to constitutional guarantees, stems from the understanding that
marriage is more than a routine classification for purposes of certain
statutory benefits. Private, consensual sexual intimacy between two adult
persons of the same sex may not be punished by the State, and it can form
"but one element in a personal bond that is more enduring." Lawrence v.
Texas, 539 U. S. 558, 567 (2003). By its recognition of the validity of
same-sex
marriages performed in other jurisdictions and then by authorizing same-sex
unions and same-sex marriages, New York sought to give [**827] further protection
and dignity to that bond. For same-sex couples who wished to be married, the
State acted to give their lawful conduct a lawful status. This status is a
far-reaching legal acknowledgment of the intimate relationship between two
people, a relationship deemed by the State worthy of dignity in the
community equal with all other marriages. It reflects both the community's
considered perspective on the historical [*2693] roots of the institution of
marriage and its evolving understanding of the meaning of equality.

IV

[2] DOMA seeks to injure the very class New York seeks to protect. By doing so
it violates basic due process and equal protection principles applicable to
the Federal Government. See U. S. Const., Amdt. 5; Bolling v. Sharpe,
347 U. S. 497 (1954). The Constitution's guarantee of equality "must at the
very least mean that a bare congressional desire to harm a politically
unpopular group cannot" justify disparate treatment of that group.
Department of Agriculture v. Moreno, 413 U. S. 528, 534-535 (1973). In
determining whether a law is motived by an improper animus or purpose,
"`[d]iscriminations of an unusual character'" especially require careful
consideration. Supra, at 19 (quoting Romer, supra, at 633). DOMA cannot
survive under these principles. The responsibility of the States for the
regulation of domestic relations is an important indicator of the
substantial societal impact the State's classifications have in the daily
lives and customs of its people. DOMA's unusual deviation from the usual
tradition of recognizing and accepting state definitions of marriage here
operates to deprive same-sex couples of the benefits and responsibilities
that come with the federal recognition of their marriages. This is strong
evidence of a
law having the purpose and effect of disapproval of that class. The avowed
purpose and practical effect of the law here in question are to impose a
disadvantage, a separate status, and so a stigma upon all who enter into
same-sex marriages made lawful by the unquestioned authority of the States.

The history [***16] of DOMA's enactment and its own text demonstrate that
interference with the equal dignity of same-sex marriages, a dignity
conferred by the States in the exercise of their sovereign power, was more
than an incidental effect of the federal statute. It was its essence. The
House Report announced its conclusion that "it is both appropriate and
necessary for Congress to do what it can to defend the institution of
traditional heterosexual marriage. . . . H. R. 3396 is appropriately
entitled the `Defense of Marriage Act.' The effort to redefine `marriage' to
extend to homosexual couples is a truly radical proposal that would
fundamentally alter the institution of marriage." H. R. Rep. No. 104-664,
pp. 12-13 (1996). The House concluded that DOMA expresses "both moral
disapproval of homosexuality, and a moral conviction that heterosexuality
better comports with traditional (especially Judeo-Christian) morality."
Id., at 16 (footnote deleted). The stated purpose of the law was to promote
an "interest in protecting the traditional moral teachings reflected in
heterosexual-only marriage laws." Ibid. Were there any doubt of this
far-reaching purpose, the title of the Act confirms it: The Defense of
Marriage.
[**828]

The arguments put forward by BLAG are just as candid about the
congressional purpose to influence or interfere with state sovereign choices
about who may be married. As the title and dynamics of the bill indicate,
its purpose is to discourage enactment of state same-sex marriage laws and
to restrict the freedom and choice of couples married under those laws if
they are enacted. The congressional goal was "to put a thumb on the scales
and influence a
state's decision as to how to shape its own marriage laws." Massachusetts,
682 F. 3d, at 12-13. The Act's demonstrated purpose is to ensure that if any
State decides to recognize same-sex marriages, those unions will be treated
as second-class marriages [*2694] for purposes of federal law. This raises a most
serious question under the Constitution's Fifth Amendment.

DOMA's operation in practice confirms this purpose. When New York adopted
a law to permit same-sex marriage, it sought to eliminate inequality; but
DOMA frustrates that objective through a system-wide enactment with no
identified connection to any particular area of federal law. DOMA writes
inequality into the entire United States Code. The particular case at hand
concerns the estate tax, but DOMA is more than a simple determination of
what should or should not be allowed as an estate tax refund. Among the over
1,000 statutes and numerous federal regulations that DOMA controls are laws
pertaining to Social Security, housing, taxes, criminal sanctions,
copyright, and veterans' benefits.

DOMA's principal effect is to identify a subset of state-sanctioned
marriages and make them unequal. The principal purpose is to impose
inequality, not for other reasons like governmental efficiency.
Responsibilities, as well as rights, enhance the dignity and integrity of
the person. And DOMA contrives to deprive some couples married under the
laws of their State, but not other [***17] couples, of both rights and
responsibilities. By creating two contradictory marriage regimes within the
same State, DOMA forces same-sex couples to live as married for the purpose
of state law but unmarried for the purpose of federal law, thus diminishing
the stability and predictability of basic personal relations the State has
found it proper to acknowledge and protect. By this dynamic DOMA undermines
both the public and private significance of state-sanctioned same-sex
marriages; for it tells those couples,
and all the world, that their otherwise valid marriages are unworthy of
federal recognition. This places same-sex couples in an unstable position of
being in a second-tier marriage. The differentiation demeans the couple,
whose moral and sexual choices the Constitution protects, see Lawrence,
539 U. S. 558, and whose relationship the State has sought to dignify. And
it humiliates tens of thousands of children now being raised by same-sex
couples. The law in question makes it even more difficult for the children
to understand the integrity and closeness of their own family and its
concord with other families in their community and in their daily lives.

Under DOMA, same-sex married couples have their lives burdened, by reason
of government decree, in visible and public ways. By its great reach, DOMA
touches many aspects of married and family life, from the mundane to the
profound. It prevents same-sex married couples from obtaining government
healthcare benefits [**829] they would otherwise receive. See 5 U. S. C. §§ 8901(5),
8905. It deprives them of the Bankruptcy Code's special protections for
domestic-support obligations. See 11 U. S. C. §§ 101(14A), 507(a)(1)(A),
523(a)(5), 523(a)(15). It forces them to follow a complicated procedure to
file their state and federal taxes jointly. Technical Bulletin TB-55, 2010
Vt. Tax LEXIS 6 (Oct. 7, 2010); Brief for Federalism Scholars as AmiciCuriae 34. It prohibits them from being buried together in veterans'
cemeteries. National Cemetery Administration Directive 3210/1, p. 37 (June
4, 2008).

For certain married couples, DOMA's unequal effects are even more serious.
The federal penal code makes it a crime to "assaul[t], kidna[p], or murde[r]
. . . a member of the immediate family" of "a United States official, a
United States judge, [or] a Federal law enforcement officer,"
18 U. S. C. § 115(a)(1)(A), with the intent to influence or retaliate
against that [*2695] official, § 115(a)(1). Although a "spouse" qualifies as a
member of the officer's "immediate
family," § 115(c)(2), DOMA makes this protection inapplicable to same-sex
spouses.

DOMA also brings financial harm to children of same-sex couples. It raises
the cost of health care for families by taxing health benefits provided by
employers to their workers' same-sex spouses. See 26 U. S. C. § 106; Treas.
Reg. § 1.106-1, 26 CFR § 1.106-1 (2012); IRS Private Letter Ruling 9850011
(Sept. 10, 1998). And it denies or reduces benefits allowed to families upon
the loss of a spouse and parent, benefits that are an integral part of
family security. See Social Security Administration, Social Security
Survivors Benefits 5 (2012) (benefits available to a surviving spouse caring
for the couple's child), online at http://www.ssa.gov/pubs/EN-05-[***18] 10084.pdf.

DOMA divests married same-sex couples of the duties and responsibilities
that are an essential part of married life and that they in most cases would
be honored to accept were DOMA not in force. For instance, because it is
expected that spouses will support each other as they pursue educational
opportunities, federal law takes into consideration a spouse's income in
calculating a student's federal financial aid eligibility. See
20 U. S. C. § 1087nn(b). Same-sex married couples are exempt from this
requirement. The same is true with respect to federal ethics rules. Federal
executive and agency officials are prohibited from "participat[ing]
personally and substantially" in matters as to which they or their spouses
have a financial interest. 18 U. S. C. § 208(a). A similar statute prohibits
Senators, Senate employees, and their spouses from accepting high-value
gifts from certain sources, see 2 U. S. C. § 31-2(a)(1), and another
mandates detailed financial disclosures by numerous high-ranking officials
and their spouses. See 5 U. S. C. App. §§ 102(a), (e). Under DOMA, however,
these Government-integrity rules do not apply to same-sex spouses.

***

The power the Constitution grants it also restrains. And though Congress
has great authority to design laws to fit its own conception of sound
national policy, it cannot deny the liberty protected by the Due Process
Clause of the Fifth Amendment.

[3] What has been explained to this point should more than suffice to
establish that the principal purpose and the necessary effect of this law
are to [**830] demean those persons who are in a lawful same-sex marriage. This
requires the Court to hold, as it now does, that DOMA is unconstitutional as
a deprivation of the liberty of the person protected by the Fifth Amendment
of the Constitution.

The liberty protected by the Fifth Amendment's Due Process Clause contains
within it the prohibition against denying to any person the equal protection
of the laws. See Bolling, 347 U. S., at 499-500; Adarand Constructors, Inc.
v. Peña, 515 U. S. 200, 217-218 (1995). While the Fifth Amendment itself
withdraws from Government the power to degrade or demean in the way this law
does, the equal protection guarantee of the Fourteenth Amendment makes that
Fifth Amendment right all the more specific and all the better understood
and preserved.

The class to which DOMA directs its restrictions and restraints are those
persons who are joined in same-sex marriages made lawful by the State. DOMA
singles out a class of persons deemed by a State entitled to recognition and
protection to enhance their own liberty. It imposes a [*2696] disability on the
class by refusing to acknowledge a status the State finds to be dignified
and proper. DOMA instructs all federal officials, and indeed all persons
with whom same-sex couples interact, including their own children, that
their marriage is less worthy than the marriages of others. The federal
statute is invalid, for no legitimate purpose overcomes the purpose and
effect to disparage and to injure those whom the State, by its marriage
laws, sought to protect in personhood and dignity. By seeking to displace
this protection and treating those persons as living in marriages [***19] less
respected than others, the federal statute is in violation of the Fifth
Amendment. This opinion and its holding are confined to those lawful
marriages.

The judgment of the Court of Appeals for the Second Circuit is affirmed.

It is so ordered.

CHIEF JUSTICE ROBERTS, dissenting.

I agree with JUSTICE SCALIA that this Court lacks jurisdiction to review
the decisions of the courts below. On the merits of the constitutional
dispute the Court decides to decide, I also agree with JUSTICE SCALIA that
Congress acted constitutionally in passing the Defense of Marriage Act
(DOMA). Interests in uniformity and stability amply justified Congress's
decision to retain the definition of marriage that, at that point, had been
adopted by every State in our Nation, and every nation in the world. Post,
at 19-20 (dissenting opinion).

The majority sees a more sinister motive, pointing out that the Federal
Government has generally (though not uniformly) deferred to state
definitions of marriage in the past. That is true, of course, but none of
those prior state-by-state variations had involved differences over
some-thing-as the majority puts it — "thought of by most people as essential
to the very definition of [marriage] and to its role and function throughout
the history of civilization." [**831]Ante, at 13. That the Federal Government
treated this fundamental question differently than it treated variations
over consanguinity or minimum age is hardly surprising-and hardly enough to
support a conclusion that the "principal purpose," ante, at 22, of the 342
Representatives
and 85 Senators who voted for it, and the President who signed it, was a
bare desire to harm. Nor do the snippets of legislative history and the
banal title of the Act to which the majority points suffice to make such a
showing. At least without some more convincing evidence that the Act's
principal purpose was to codify malice, and that it furthered no legitimate
government interests, I would not tar the political branches with the brush
of bigotry.

But while I disagree with the result to which the majority's analysis
leads it in this case, I think it more important to point out that its
analysis leads no further. The Court does not have before it, and the logic
of its opinion does not decide, the distinct question whether the States, in
the exercise of their "historic and essential authority to define the
marital relation," ante, at 18, may continue to utilize the traditional
definition of marriage.

The majority goes out of its way to make this explicit in the penultimate
sentence of its opinion. It states that "[t]his opinion and its holding are
confined to those lawful marriages," ante, at 26 — referring to same-sex
marriages that a State has already recognized as a result of the local
"community's considered perspective on the historical roots of the
institution of marriage and its evolving understanding of the meaning of
equality." Ante, at 20. JUSTICE SCALIA believes this is a "`bald, unreasoned
disclaime[r].'" [*2697]Post, at 22. In my view, though, the disclaimer is a logical
and necessary consequence of [***20] the argument the majority has chosen to adopt.
The dominant theme of the majority opinion is that the Federal Government's
intrusion into an area "central to state domestic relations law applicable
to its residents and citizens" is sufficiently "unusual" to set off alarm
bells. Ante, at 17, 20. I think the majority goes off course, as I have
said, but it is undeniable that its judgment is based on federalism.

The majority extensively chronicles DOMA's departure from the normal
allocation of responsibility between State
and Federal Governments, emphasizing that DOMA "rejects the long-established
precept that the incidents, benefits, and obligations of marriage are
uniform for all married couples within each State." Ante, at 18. But there
is no such departure when one State adopts or keeps a definition of marriage
that differs from that of its neighbor, for it is entirely expected that
state definitions would "vary, subject to constitutional guarantees, from
one State to the next." Ibid. Thus, while "[t]he State's power in defining
the marital relation is of central relevance" to the majority's decision to
strike down DOMA here, ibid., that power will come into play on the other
side of the board in future cases about the constitutionality of state
marriage definitions. So too will the concerns for state diversity and
sovereignty that weigh against DOMA's constitutionality in this case. See
ante, at 19.
[**832]

It is not just this central feature of the majority's analysis that is
unique to DOMA, but many considerations on the periphery as well. For
example, the majority focuses on the legislative history and title of this
particular Act, ante, at 21; those statute-specific considerations will, of
course, be irrelevant in future cases about different statutes. The majority
emphasizes that DOMA was a "system-wide enactment with no identified
connection to any particular area of federal law," but a State's definition
of marriage "is the foundation of the State's broader authority to regulate
the subject of domestic relations with respect to the `[p]rotection of
offspring, property interests, and the enforcement of marital
responsibilities.'" Ante, at 22, 17. And the federal decision undermined (in
the majority's view) the "dignity [already] conferred by the States in the
exercise of their sovereign power," ante, at 21, whereas a State's decision
whether to expand the definition of marriage from its traditional contours
involves no similar concern.

We may in the future have to resolve challenges to state
marriage definitions affecting same-sex couples. That issue, however, is not
before us in this case, and we hold today that we lack jurisdiction to
consider it in the particular context of Hollingsworth v. Perry, ante, p.
___. I write only to highlight the limits of the majority's holding and
reasoning today, lest its opinion be taken to resolve not only a question
that I believe is not properly before us — DOMA's constitutionality — but
also a question that all agree, and the Court explicitly acknowledges, is
not at issue.

JUSTICE SCALIA, with whom JUSTICE [***21] THOMAS joins, and with whom THE CHIEF
JUSTICE joins as to Part I, dissenting.

This case is about power in several respects. It is about the power of our
people to govern themselves, and the power of this Court to pronounce the
law. Today's opinion aggrandizes the latter, with the predictable
consequence of diminishing the former. We have no power to decide this case.
And even if we did, we have no [*2698] power under the Constitution to invalidate
this democratically adopted legislation. The Court's errors on both points
spring forth from the same diseased root: an exalted conception of the role
of this institution in America.

I

A

The Court is eager — hungry — to tell everyone its view of the legal
question at the heart of this case. Standing in the way is an obstacle, a
technicality of little interest to
"Cases" and "Controversies." Yet the plaintiff and the Government agree
entirely on what should happen in this lawsuit. They agree that the court
below got it right; and they agreed in the court below that the court below
that one got it right as well. What, then, are we doing here?

The answer lies at the heart of the jurisdictional portion of today's
opinion, [**833] where a single sentence lays bare the majority's vision of our
role. The Court says that we have the power to decide this case because if
we did not, then our "primary role in determining the constitutionality of a
law" (at least one that "has inflicted real injury on a plaintiff ") would
"become only secondary to the President's." Ante, at 12. But wait, the
reader wonders — Windsor won below, and so cured her injury, and the
President was glad to see it. True, says the majority, but judicial review
must march on regardless, lest we "undermine the clear dictate of the
separation-of-powers principle that when an Act of Congress is alleged to
conflict with the Constitution, it is emphatically the province and duty of
the judicial department to say what the law is." Ibid. (internal quotation
marks and brackets omitted).

That is jaw-dropping. It is an assertion of judicial supremacy over the
people's Representatives in Congress and the Executive. It envisions a
Supreme Court standing (or rather enthroned) at the apex of government,
empowered to decide all constitutional questions, always and everywhere
"primary" in its role.

This image of the Court would have been unrecognizable to those who wrote
and ratified our national charter. They knew well the dangers of "primary"
power, and so created branches of government that would be "perfectly
coordinate by the terms of their common commission," none of which branches
could "pretend to an exclusive or superior right of settling the boundaries
between their respective powers." The Federalist, No. 49, p. 314 (C.
Rossiter ed. 1961) (J. Madison). The people did this to protect
themselves. They did it to guard their right to self-rule against the
black-robed supremacy that today's majority finds so attractive. So it was
that Madison could confidently state, with no fear of contradiction, that
there was nothing of "greater intrinsic value" or "stamped with the
authority of more enlightened patrons [***22] of liberty" than a government of
separate and coordinate powers. Id., No. 47, at 301.

For this reason we are quite forbidden to say what the law is whenever (as
today's opinion asserts) "`an Act of Congress is alleged to conflict with
the Constitution.'" Ante, at 12. We can do so only when that allegation will
determine the outcome of a lawsuit, and is contradicted by the other party.
The "judicial Power" is not, as the majority believes, the power "`to say
what the law is,'" ibid., giving the Supreme Court the "primary role in
determining the constitutionality of laws." The [*2699] majority must have in mind
one of the foreign constitutions that pronounces such primacy for its
constitutional court and allows that primacy to be exercised in contexts
other than a lawsuit. See, e.g., Basic Law for the Federal Republic of
Germany, Art. 93. The judicial power as Americans have understood it (and
their English ancestors before them) is the power to adjudicate, with
conclusive effect, disputed government claims (civil or criminal) against
private persons, and disputed claims by private persons against the
government or other private persons. Sometimes (though not always) the
parties before the court disagree not with regard to the facts of their case
(or not only with regard to the facts) but with regard to the applicable law
— in which event (and only in which event) it becomes the "`province and
duty of the judicial [**834] department to say what the law is.'" Ante, at 12.

In other words, declaring the compatibility of state or federal laws with
the Constitution is not only not the "primary role" of this Court, it is not
a separate, free-standing
role at all. We perform that role incidentally — by accident, as it were —
when that is necessary to resolve the dispute before us. Then, and only
then, does it become "`the province and duty of the judicial department to
say what the law is.'" That is why, in 1793, we politely declined the
Washington Administration's request to "say what the law is" on a particular
treaty matter that was not the subject of a concrete legal controversy. 3
Correspondence and Public Papers of John Jay 486-489 (H. Johnston ed. 1893).
And that is why, as our opinions have said, some questions of law will never
be presented to this Court, because there will never be anyone with standing
to bring a lawsuit. See Schlesinger v. Reservists Comm. to Stop the War,
418 U. S. 208, 227 (1974); United States v. Richardson, 418 U. S. 166, 179
(1974). As Justice Brandeis put it, we cannot "pass upon the
constitutionality of legislation in a friendly, non-adversary, proceeding";
absent a "`real, earnest and vital controversy between individuals,'" we
have neither any work to do nor any power to do it. Ashwander v. TVA,
297 U. S. 288, 346 (1936) (concurring opinion) (quoting Chicago & GrandTrunk R. Co. v. Wellman, 143 U. S. 339, 345 (1892)). Our authority begins
and ends with the need to adjudge the rights of an injured party who stands
before us seeking redress. Lujan v. Defenders of Wildlife, 504 U. S. 555,
560 (1992).

That is completely absent here. Windsor's injury was cured by the judgment
in her favor. And while, in ordinary circumstances, the United States is
injured by a directive to pay a tax refund, this suit is far from ordinary.
[***23] Whatever injury the United States has suffered will surely not be redressed
by the action that it, as a litigant, asks us to take. The final sentence of
the Solicitor General's brief on the merits reads: "For the foregoing
reasons, the judgment of the court of appeals should be affirmed." Brief for
United States (merits) 54 (emphasis added). That will not cure the
Government's injury, but carve it into stone. One
could spend many fruitless afternoons ransacking our library for any other
petitioner's brief seeking an affirmance of the judgment against it.[*2700][fn1]
What the petitioner United States asks us to do in the case before us is
exactly what the respondent Windsor asks us to do: not to provide relief
from the judgment below but to say that that judgment was correct. And the
same was true in the Court of Appeals: Neither party sought to undo the
judgment for Windsor, and so that court should have dismissed the appeal
(just as we should dismiss) for lack of jurisdiction. Since both parties
agreed with the judgment of the District Court for the Southern District of
New York, [**835] the suit should have ended there. The further proceedings have
been a contrivance, having no object in mind except to elevate a District
Court judgment that has no precedential effect in other courts, to one that
has precedential effect throughout the Second Circuit, and then (in this
Court) precedential effect throughout the United States.

We have never before agreed to speak — to "say what the law is" — where
there is no controversy before us. In the more than two centuries that this
Court has existed as an institution, we have never suggested that we have
the power to decide a question when every party agrees with both its nominal
opponent and the court below on that question's answer. The United States
reluctantly conceded that at oral argument. See Tr. of Oral Arg. 19-20.

The closest we have ever come to what the Court blesses today was our
opinion in INS v. Chadha, 462 U. S. 919 (1983). But in that case, two
parties to the litigation
disagreed with the position of the United States and with the court below:
the House and Senate, which had intervened in the case. Because Chadha
concerned the validity of a mode of congressional action — the one-house
legislative veto — the House and Senate were threatened with destruction of
what they claimed to be one of their institutional powers. The Executive
choosing not to defend that power,[fn2] we permitted the House and Senate to
intervene. Nothing like that is present here.

To be sure, the Court in Chadha said that statutory aggrieved-party status
was "not altered by the fact that the Executive may agree with the holding
that the statute in question is unconstitutional." Id., at 930-931. But in a
footnote to that statement, the Court acknowledged Article III's separate
requirement of a "justiciable case or controversy," and stated that this
requirement was satisfied "because of the presence of the two Houses of
Congress as adverse parties." Id., at 931, n. 6. Later in its opinion, the
Chadha Court remarked that the United States' announced intention to enforce
the statute [***24] also sufficed to permit judicial review, even absent
congressional participation. Id., at 939. That remark is true, as a
description of the judicial review conducted in the Court of Appeals, where
the Houses of Congress [*2701] had not intervened.
(The case originated in the Court of Appeals, since it sought review of
agency action under 8 U. S. C. § 1105a(a) (1976 ed.).) There, absent a
judgment setting aside the INS order, Chadha faced deportation. This passage
of our opinion seems to be addressing that initial standing in the Court of
Appeals, as indicated by its quotation from the lower court's opinion,
462 U. S., at 939-940[**836] . But if it was addressing standing to pursue the
appeal, the remark was both the purest dictum (as congressional intervention
at that point made the required adverseness "beyond doubt," id., at 939),
and quite incorrect. When a private party has a judicial decree safely in
hand to prevent his injury, additional judicial action requires that a party
injured by the decree seek to undo it. In Chadha, the intervening House and
Senate fulfilled that requirement. Here no one does.

The majority's discussion of the requirements of Article III bears no
resemblance to our jurisprudence. It accuses the amicus (appointed to argue
against our jurisdiction) of "elid[ing] the distinction between . . . the
jurisdictional requirements of Article III and the prudential limits on its
exercise." Ante, at 6. It then proceeds to call the requirement of
adverseness a "prudential" aspect of standing. Of standing. That is
incomprehensible. A plaintiff (or appellant) can have all the standing in
the world — satisfying all three standing requirements of Lujan that the
majority so carefully quotes, ante, at 7 — and yet no Article III
controversy may be before the court. Article III requires not just a
plaintiff (or appellant) who has standing to complain but an opposing party
who denies the validity of the complaint. It is not the amicus that has done
the eliding of distinctions, but the majority, calling the quite separate
Article III requirement of adverseness between the parties an element (which
it then pronounces a "prudential" element) of standing. The question here is
not whether, as the majority puts it, "the United States retains a stake
sufficient to support Article III jurisdiction," ibid. the question is
whether there is any controversy (which requires contradiction) between the
United States and Ms. Windsor. There is not.

I find it wryly amusing that the majority seeks to dismiss the requirement
of party-adverseness as nothing more than a "prudential" aspect of the sole
Article III requirement of standing. (Relegating a jurisdictional
requirement to "prudential" status is a wondrous device, enabling courts to
ignore the requirement whenever they believe it "prudent" — which is to say,
a good idea.) Half a century ago, a Court similarly bent upon announcing its
view regarding the constitutionality of a federal statute achieved that goal
by effecting a remarkably similar but completely opposite distortion of the
principles limiting our jurisdiction. The Court's notorious opinion [***25] in Flast
v. Cohen, 392 U. S. 83, 98-101 (1968), held that standing was merely an
element (which it pronounced to be a "prudential" element) of the sole
Article III requirement of adverseness. We have been living with the chaos
created by that power-grabbing decision ever since, see Hein v. Freedom FromReligion Foundation, Inc., 551 U. S. 587 (2007), as we will have to live
with the chaos created by this one.

The authorities the majority cites fall miles short of supporting the
counterintuitive notion that an Article III "controversy" can exist without
disagreement between the parties. In Deposit Guaranty Nat. Bank v. Roper,
445 U. S. 326 (1980), the District Court had entered judgment in the
individual plaintiff `s favor based on [**837] the [*2702] defendant bank's offer to pay the
full amount claimed. The plaintiff, however, sought to appeal the District
Court's denial of class certification under Federal Rule of Civil Procedure
23. There was a continuing dispute between the parties concerning the issue
raised on appeal. The same is true of the other case cited by the majority,
Camreta v. Greene, 563 U. S. ___ (2011).
There the District Court found that the defendant state officers had
violated the Fourth Amendment, but rendered judgment in their favor because
they were entitled to official immunity, application of the Fourth Amendment
to their conduct not having been clear at the time of violation. The
officers sought to appeal the holding of Fourth Amendment violation, which
would circumscribe their future conduct; the plaintiff continued to insist
that a Fourth Amendment violation had occurred. The "prudential" discretion
to which both those cases refer was the discretion to deny an appeal even
when a live controversy exists — not the discretion to grant one when it
does not. The majority can cite no case in which this Court entertained an
appeal in which both parties urged us to affirm the judgment below. And that
is because the existence of a controversy is not a "prudential" requirement
that we have invented, but an essential element of an Article III case or
controversy. The majority's notion that a case between friendly parties can
be entertained so long as "adversarial presentation of the issues is assured
by the participation of amici curiae prepared to defend with vigor" the
other side of the issue, ante, at 10, effects a breathtaking revolution in
our Article III jurisprudence.

It may be argued that if what we say is true some Presidential
determinations that statutes are unconstitutional will not be subject to our
review. That is as it should be, when both the President and the plaintiff
agree that the statute is unconstitutional. Where the Executive is enforcing
an unconstitutional law, suit will of course lie; but if, in that suit, the
Executive admits the unconstitutionality of the law, the litigation should
end in an order or a consent decree enjoining enforcement. This suit saw the
light of day only because the President enforced the Act (and thus gave
Windsor standing to sue) even though he believed it unconstitutional. He
could have equally chosen (more appropriately, some would say) neither to
enforce
nor to defend [***26] the statute he believed to be unconstitutional, see
Presidential Authority to Decline to Execute Unconstitutional Statutes, 18
Op. Off. Legal Counsel 199 (Nov. 2, 1994) — in which event Windsor would not
have been injured, the District Court could not have refereed this friendly
scrimmage, and the Executive's determination of unconstitutionality would
have escaped this Court's desire to blurt out its view of the law. The
matter would have been left, as so many matters ought to be left, to a tug
of war between the President and the Congress, which has innumerable means
(up to and including impeachment) of compelling the President to enforce the
laws it has written. Or the President could have evaded presentation of the
constitutional issue to this Court simply by declining to appeal the
District Court and Court of Appeals dispositions he agreed with. Be sure of
this much: If a President wants to insulate his judgment of
unconstitutionality from our review, [**838] he can. What the views urged in this
dissent produce is not insulation from judicial review but insulation from
Executive contrivance.

The majority brandishes the famous sentence from Marbury v. Madison,
1 Cranch 137, 177 (1803) that "[i]t is emphatically the province and duty of
the judicial department to say what the law is." Ante, at 12 (internal
quotation [*2703] marks omitted). But that sentence neither says nor implies that it
is always the province and duty of the Court to say what the law is — much
less that its responsibility in that regard is a "primary" one. The very
next sentence of Chief Justice Marshall's opinion makes the crucial
qualification that today's majority ignores: "Those who apply the rule toparticular cases, must of necessity expound and interpret that rule."
1 Cranch, at 177 (emphasis added). Only when a "particular case" is before
us — that is, a controversy that it is our business to resolve under Article
III — do we have the province and duty to pronounce the law. For the views
of our early Court more
precisely addressing the question before us here, the majority ought instead
to have consulted the opinion of Chief Justice Taney in Lord v. Veazie,
8 How. 251 (1850):

"The objection in the case before us is . . . that the plaintiff
and defendant have the same interest, and that interest adverse and
in conflict with the interest of third persons, whose rights would
be seriously affected if the question of law was decided in the
manner that both of the parties to this suit desire it to be.

"A judgment entered under such circumstances, and for such
purposes, is a mere form. The whole proceeding was in contempt of
the court, and highly reprehensible. . . . A judgment in form, thus
procured, in the eye of the law is no judgment of the court. It is a
nullity, and no writ of error will lie upon it. This writ is,
therefore, dismissed." Id., at 255-256.

There is, in the words of Marbury, no "necessity [to] expound and interpret"
the law in this case; just a desire to place this Court at the center of the
Nation's life. 1 Cranch, at 177.

B

A few words in response to the theory of jurisdiction set forth in JUSTICE
ALITO's dissent: Though less [***27] far reaching in its consequences than the
majority's conversion of constitutionally required adverseness into a
discretionary element of standing, the theory of that dissent similarly
elevates the Court to the "primary" determiner of constitutional questions
involving the separation of powers, and, to boot, increases the power of the
most dangerous branch: the "legislative department," which by its nature
"draw[s] all power into its impetuous vortex." The Federalist, No. 48, at
309 (J. Madison). Heretofore in our national history, the President's
failure to "take Care that the Laws be faithfully executed," U. S. Const.,
Art. II, § 3, could only be
brought before a judicial tribunal by someone whose concrete interests were
harmed by that alleged failure. JUSTICE ALITO would create a system in which
Congress can hale the Executive before the courts not only to vindicate its
own institutional powers to act, but to correct a perceived inadequacy in
the [**839] execution of its laws.[fn3] This would lay to rest Tocqueville's [*2704] praise
of our judicial system as one which "intimately bind[s] the case made for
the law with the case made for one man," one in which legislation is "no
longer exposed to the daily aggression of the parties," and in which "[t]he
political question that [the judge] must resolve is linked to the interest"
of private litigants. A. de Tocqueville, Democracy in America 97 (H.
Mansfield & D. Winthrop eds. 2000).
That would be replaced by a system in which Congress and the Executive can
pop immediately into court, in their institutional capacity, whenever the
President refuses to implement a statute he believes to be unconstitutional,
and whenever he implements a law in a manner that is not to Congress's
liking.

JUSTICE ALITO's notion of standing will likewise enormously shrink the
area to which "judicial censure, exercised by the courts on legislation,
cannot extend," ibid. For example, a bare majority of both Houses could
bring into court the assertion that the Executive's implementation of
welfare programs is too generous — a failure that no other litigant would
have standing to complain about. Moreover, as we indicated in Raines v.
Byrd, 521 U. S. 811, 828 (1997), if Congress can sue the Executive for the
erroneous application of the law that "injures" its power to legislate,
surely the Executive can sue Congress for its erroneous adoption of an
unconstitutional law that "injures" the Executive's power to administer — or
perhaps for its protracted failure to act on one of his nominations. The
opportunities for dragging the courts into disputes hitherto left for
political resolution are endless.

JUSTICE ALITO's dissent is correct that Raines did not formally decide
this issue, but its reasoning does. The opinion spends three pages
discussing famous, decades-long disputes between the President and Congress
— regarding congressional power to forbid the Presidential removal of
executive officers, regarding the legislative veto, regarding congressional
appointment of executive officers, and regarding the pocket veto — that
would surely have been promptly resolved [***28] by a Congress-vs.-the-President
lawsuit if the impairment of a branch's powers alone conferred [**840] standing to
commence litigation. But it does not, and never has; the "enormous power
that the judiciary would acquire" from the ability to adjudicate such suits
"would have made a mockery of [Hamilton's]
quotation of Montesquieu to the effect that `of the three powers above
mentioned . . . the JUDICIARY is next to nothing.'" Barnes v. Kline,
759 F. 2d 21, 58 (CADC 1985) (Bork, J., dissenting) (quoting The Federalist
No. 78 (A. Hamilton)).

To be sure, if Congress cannot invoke our authority in the way that
JUSTICE ALITO proposes, then its only recourse is to confront the President
directly. Unimaginable evil this is not. Our system is designed for
confrontation. That is what "[a]mbition . . . counteract[ing] ambition," The
Federalist, No. 51, at 322 (J. Madison), is all about. If majorities in both
[*2705] Houses of Congress care enough about the matter, they have available
innumerable ways to compel executive action without a lawsuit — from
refusing to confirm Presidential appointees to the elimination of funding.
(Nothing says "enforce the Act" quite like ". . . or you will have money for
little else.") But the condition is crucial; Congress must care enough to
act against the President itself, not merely enough to instruct its lawyers
to ask us to do so. Placing the Constitution's entirely anticipated
political arm wrestling into permanent judicial receivership does not do the
system a favor. And by the way, if the President loses the lawsuit but does
not faithfully implement the Court's decree, just as he did not faithfully
implement Congress's statute, what then? Only Congress can bring him to heel
by . . . what do you think? Yes: a direct confrontation with the President.

II

For the reasons above, I think that this Court has, and the Court of
Appeals had, no power to decide this suit. We should vacate the decision
below and remand to the Court of Appeals for the Second Circuit, with
instructions to dismiss the appeal. Given that the majority has volunteered
its view of the merits, however, I proceed to discuss that as well.

A

There are many remarkable things about the majority's merits holding. The
first is how rootless and shifting its justifications are. For example, the
opinion starts with seven full pages about the traditional power of States
to define domestic relations — initially fooling many readers, I am sure,
into thinking that this is a federalism opinion. But we are eventually told
that "it is unnecessary to decide whether this federal intrusion on state
power is a violation of the Constitution," and that "[t]he State's power in
defining the marital relation is of central relevance in this case quite
apart from principles of federalism" because "the State's decision to give
this class of persons the right to marry conferred upon them a dignity and
status of immense import." Ante, at 18. But no one questions the power of
the States to define marriage (with the concomitant conferral of dignity and
status), so what is the point of devoting seven pages to describing how long
and well established that power is? Even [***29] after the opinion has formally
disclaimed reliance upon principles of federalism, mentions of "the usual
tradition of recognizing and accepting state definitions of marriage"
continue. See, e.g., ante, at 20. What to make of this? The opinion never
explains. My guess is that the majority, while reluctant to suggest that
defining the meaning of "marriage" [**841] in federal statutes is unsupported by any
of the Federal Government's enumerated powers,[fn4] nonetheless needs some
rhetorical basis to support its pretense that today's prohibition of
laws excluding same-sex marriage is confined to the Federal Government
(leaving the second, state-law shoe to be dropped later, maybe next Term).
But I am only guessing.

Equally perplexing are the opinion's references to "the Constitution's
guarantee of equality." Ibid. Near the end of the opinion, we are told that
although the "equal protection guarantee of the Fourteenth Amendment makes
[the] Fifth[*2706] Amendment [due process] right all the more specific and all the
better understood and preserved" — what can that mean? — "the Fifth
Amendment itself withdraws from Government the power to degrade or demean in
the way this law does." Ante, at 25. The only possible interpretation of
this statement is that the Equal Protection Clause, even the Equal
Protection Clause as incorporated in the Due Process Clause, is not the
basis for today's holding. But the portion of the majority opinion that
explains why DOMA is unconstitutional (Part IV) begins by citing Bolling v.
Sharpe, 347 U. S. 497 (1954), Department of Agriculture v. Moreno,
413 U. S. 528 (1973), and Romer v. Evans, 517 U. S. 620 (1996) — all of
which are equal-protection cases.[fn5] And those three cases are the only
authorities that the Court cites in Part IV about the Constitution's
meaning, except for its citation of Lawrence v. Texas, 539 U. S. 558 (2003)
(not an equal-protection case) to support its passing assertion that the
Constitution protects the "moral and sexual choices" of same-sex couples,
ante, at 23.

Moreover, if this is meant to be an equal-protection opinion, it is a
confusing one. The opinion does not resolve and indeed does not even mention
what had been the
central question in this litigation: whether, under the Equal Protection
Clause, laws restricting marriage to a man and a woman are reviewed for more
than mere rationality. That is the issue that divided the parties and the
court below, compare Brief for Respondent Bipartisan Legal Advisory Group of
U. S. House of Representatives (merits) 24-28 (no), with Brief for
Respondent Windsor (merits) 17-31 and Brief for United States (merits) 18-36
(yes); and compare 699 F. 3d 169, 180-185 (CA2 2012) (yes), with id., at
208-211 (Straub, J., dissenting in part and concurring in part) (no). In
accord with my previously expressed skepticism about the Court's "tiers of
scrutiny" approach, I would review this classification only for its
rationality. See United States v. Virginia, 518 U. S. 515, 567-570 (1996)
([**842] SCALIA, J., dissenting). As nearly as I can tell, the Court agrees with
that; its opinion does not apply strict scrutiny, and its central
propositions are taken from rational-basis cases like Moreno. But the Court
certainly does not apply anything that resembles that deferential [***30] framework.
See Heller v. Doe, 509 U. S. 312, 320 (1993) (a classification "`must be
upheld . . . if there is any reasonably conceivable state of facts'" that
could justify it).

The majority opinion need not get into the strict-vs.-rational-basis
scrutiny question, and need not justify its holding under either, because it
says that DOMA is unconstitutional as "a deprivation of the liberty of the
person protected by the Fifth Amendment of the Constitution," ante, at 25;
that it violates "basic due process" principles, ante, at 20; and that it
inflicts an "injury and indignity" of a kind that denies "an essential part
of the liberty protected by the Fifth Amendment," ante, at 19. The majority
never utters the dread words "substantive due process," perhaps sensing the
disrepute into which that doctrine has fallen, but that is what those
statements mean. Yet the opinion [*2707] does not argue that same-sex marriage is
"deeply rooted in this Nation's history and tradition,"
Washington v. Glucksberg, 521 U. S. 702, 720-721 (1997), a claim that would
of course be quite absurd. So would the further suggestion (also necessary,
under our substantive-due-process precedents) that a world in which DOMA
exists is one bereft of "`ordered liberty.'" Id., at 721 (quoting Palko v.
Connecticut, 302 U. S. 319, 325 (1937)).

Some might conclude that this loaf could have used a while longer in the
oven. But that would be wrong; it is already overcooked. The most expert
care in preparation cannot redeem a bad recipe. The sum of all the Court's
nonspecific hand-waving is that this law is invalid (maybe on
equal-protection grounds, maybe on substantive-due-process grounds, and
perhaps with some amorphous federalism component playing a role) because it
is motivated by a "`bare . . . desire to harm'" couples in same-sex
marriages. Ante, at 20. It is this proposition with which I will therefore
engage.

B

As I have observed before, the Constitution does not forbid the government
to enforce traditional moral and sexual norms. See Lawrence v. Texas,
539 U. S. 558, 599 (2003) (SCALIA, J., dissenting). I will not swell the U.
S. Reports with restatements of that point. It is enough to say that the
Constitution neither requires nor forbids our society to approve of same-sex
marriage, much as it neither requires nor forbids us to approve of no-fault
divorce, polygamy, or the consumption of alcohol.

However, even setting aside traditional moral disapproval of same-sex
marriage (or indeed same-sex sex), there are many perfectly valid — indeed,
downright boring — justifying rationales for this legislation. Their
existence ought to be the end of this case. For they give the lie to the
Court's conclusion that only those with hateful hearts could have voted
"[**843] aye" on this Act. And more importantly, they serve to make the contents of
the legislators'
hearts quite irrelevant: "It is a familiar principle of constitutional law
that this Court will not strike down an otherwise constitutional statute on
the basis of an alleged illicit legislative motive." United States v.
O'Brien, 391 U. S. 367, 383 (1968). Or at least it was a familiar principle.
By holding to the contrary, the majority has declared open season on any law
that (in the opinion of the law's opponents and any [***31] panel of like-minded
federal judges) can be characterized as mean-spirited.

The majority concludes that the only motive for this Act was the "bare . .
. desire to harm a politically unpopular group." Ante, at 20. Bear in mind
that the object of this condemnation is not the legislature of some
once-Confederate Southern state (familiar objects of the Court's scorn, see,
e.g., Edwards v. Aguillard, 482 U. S. 578 (1987)), but our respected
coordinate branches, the Congress and Presidency of the United States.
Laying such a charge against them should require the most extraordinary
evidence, and I would have thought that every attempt would be made to
indulge a more anodyne explanation for the statute. The majority does the
opposite — affirmatively concealing from the reader the arguments that exist
in justification. It makes only a passing mention of the "arguments put
forward" by the Act's defenders, and does not even trouble to paraphrase or
describe them. See ante, at 21. I imagine that this is because it is harder
to maintain the illusion [*2708] of the Act's supporters as unhinged members of a
wild-eyed lynch mob when one first describes their views as they see them.

To choose just one of these defenders' arguments, DOMA avoids difficult
choice-of-law issues that will now arise absent a uniform federal definition
of marriage. See, e.g., Baude, Beyond DOMA: Choice of State Law in Federal
Statutes, 64 Stan. L. Rev. 1371 (2012). Imagine a pair of women who marry in
Albany and then move to Alabama, which does not "recognize as valid any
marriage of
parties of the same sex." Ala. Code § 30-1-19(e) (2011). When the couple
files their next federal tax return, may it be a joint one? Which State's
law controls, for federal-law purposes: their State of celebration (which
recognizes the marriage) or their State of domicile (which does not)? (Does
the answer depend on whether they were just visiting in Albany?) Are these
questions to be answered as a matter of federal common law, or perhaps by
borrowing a State's choice-of-law rules? If so, which State's? And what
about States where the status of an out-of-state same-sex marriage is an
unsettled question under local law? See Godfrey v. Spano, 13 N. Y. 3d 358,
920 N. E. 2d 328 (2009). DOMA avoided all of this uncertainty by specifying
which marriages would be recognized for federal purposes. That is a classic
purpose for a definitional provision.

Further, DOMA preserves the intended effects of prior legislation against
then-unforeseen changes in circumstance. When Congress provided (for
example) that a special estate-tax exemption would exist for spouses, this
exemption reached only opposite-sex spouses — those being the only sort that
were recognized in any State at the time of DOMA's passage. [**844] When it became
clear that changes in state law might one day alter that balance, DOMA's
definitional section was enacted to ensure that state-level experimentation
did not automatically alter the basic operation of federal law, unless and
until Congress made the further judgment to do so on its own. That is not
animus — just stabilizing prudence. Congress has hardly demonstrated itself
unwilling to make such [***32] further, revising judgments upon due deliberation.
See, e.g., Don't Ask, Don't Tell Repeal Act of 2010, 124 Stat. 3515.

The Court mentions none of this. Instead, it accuses the Congress that
enacted this law and the President who signed it of something much worse
than, for example, having acted in excess of enumerated federal powers — or
even having drawn distinctions that prove to be irrational. Those legal
errors may be made in good faith, errors though they are. But the majority
says that the supporters of this Act acted with malice — with the "purpose"
(ante, at 25) "to disparage and to injure" same-sex couples. It says that
the motivation for DOMA was to "demean," ibid.; to "impose inequality,"
ante, at 22; to "impose . . . a stigma," ante, at 21; to deny people "equal
dignity," ibid.; to brand gay people as "unworthy," ante, at 23; and to
"humiliat[e]" their children, ibid. (emphasis added).

I am sure these accusations are quite untrue. To be sure (as the majority
points out), the legislation is called the Defense of Marriage Act. But to
defend traditional marriage is not to condemn, demean, or humiliate those
who would prefer other arrangements, any more than to defend the
Constitution of the United States is to condemn, demean, or humiliate other
constitutions. To hurl such accusations so casually demeans thisinstitution. In the majority's judgment, any resistance to its holding is
beyond the pale of reasoned disagreement. To question its high-handed
[*2709] invalidation of a presumptively valid statute is to act (the majority is
sure) with the purpose to "disparage," "injure," "degrade," "demean," and
"humiliate" our fellow human beings, our fellow citizens, who are
homosexual. All that, simply for supporting an Act that did no more than
codify an aspect of marriage that had been unquestioned in our society for
most of its existence — indeed, had been unquestioned in virtually all
societies for virtually all of human history. It is one thing for a society
to elect change; it is another for a court of law to impose change by
adjudging those who oppose it hostes humani generis, enemies of the human
race.

***

The penultimate sentence of the majority's opinion is a naked declaration
that "[t]his opinion and its holding are
confined" to those couples "joined in same-sex marriages made lawful by the
State." Ante, at 26, 25. I have heard such "bald, unreasoned disclaimer[s]"
before. Lawrence, 539 U. S., at 604. When the Court declared a
constitutional right to homosexual sodomy, we were assured that the case had
nothing, nothing at all to do with "whether the government must give formal
recognition to any relationship that homosexual persons seek to enter." Id.,
at 578. Now we are told that DOMA is invalid because it "demeans the couple,
whose moral [**845] and sexual choices the Constitution protects," ante, at 23 —
with an accompanying citation of Lawrence. It takes real cheek for today's
majority to assure us, as it is going out the door, that a constitutional
requirement to give formal recognition to same-sex marriage is not at issue
here — when what has preceded that assurance is a lecture on how superior
the majority's moral judgment in favor of same-sex marriage is [***33] to the
Congress's hateful moral judgment against it. I promise you this: The only
thing that will "confine" the Court's holding is its sense of what it can
get away with.

I do not mean to suggest disagreement with THE CHIEF JUSTICE's view, ante,
p. 2-4 (dissenting opinion), that lower federal courts and state courts can
distinguish today's case when the issue before them is state denial of
marital status to same-sex couples — or even that this Court could
theoretically do so. Lord, an opinion with such scatter-shot rationales as
this one (federalism noises among them) can be distinguished in many ways.
And deserves to be. State and lower federal courts should take the Court at
its word and distinguish away.

In my opinion, however, the view that this Court will take of state
prohibition of same-sex marriage is indicated beyond mistaking by today's
opinion. As I have said, the real rationale of today's opinion, whatever
disappearing trail of its legalistic argle-bargle one chooses to follow, is
that DOMA is motivated by "`bare . . . desire to harm'"
couples in same-sex marriages. Supra, at 18. How easy it is, indeed how
inevitable, to reach the same conclusion with regard to state laws denying
same-sex couples marital status. Consider how easy (inevitable) it is to
make the following substitutions in a passage from today's opinion ante, at
22:

"DOMA'sThis state law's principal effect is to identify a subset
of state sanctioned marriagesconstitutionally protected sexualrelationships, see Lawrence, and make them unequal. The principal
purpose is to impose inequality, not for other reasons like
governmental efficiency. Responsibilities, as well as rights,
enhance the dignity and integrity of the person. And DOMA this statelaw contrives to deprive some couples married under the laws of
their State enjoying constitutionally protected [*2710] sexualrelationships, but not other couples, of both rights and
responsibilities."

Or try this passage, from ante, at 22-23:

"[DOMA]This state law tells those couples, and all the world, that
their otherwise valid marriagesrelationships are unworthy of federal
state recognition. This places same-sex couples in an unstable
position of being in a second-tier marriagerelationship. The
differentiation demeans the couple, whose moral and sexual choices
the Constitution protects, see Lawrence,. . . ."

Or this, from ante, at 23 — which does not even require alteration, except
as to the invented number:

"And it humiliates tens of thousands of children now being raised
by same-sex couples. The law in question makes it even more
difficult for the children to understand the integrity and closeness
of their own family and its concord with [**846] other families in their
community and in their daily lives."

Similarly transposable passages — deliberately transposable, I think —
abound. In sum, that Court which finds it so horrific that Congress
irrationally and hatefully robbed same-sex couples of the "personhood and
dignity" which state legislatures conferred upon them, will of a certitude
be similarly appalled by state legislatures' irrational [***34] and hateful failure
to acknowledge that "personhood and dignity" in the first place. Ante, at
26. As far as this Court is concerned, no one should be fooled; it is just a
matter of listening and waiting for the other shoe.

By formally declaring anyone opposed to same-sex marriage an enemy of
human decency, the majority arms well every challenger to a state law
restricting marriage to its traditional definition. Henceforth those
challengers will lead with this Court's declaration that there is "no
legitimate purpose" served by such a law, and will claim that the
traditional definition has "the purpose and effect to disparage and to
injure" the "personhood and dignity" of same-sex couples, see ante, at 25,
26. The majority's limiting assurance will be meaningless in the face of
language like that, as the majority well knows. That is why the language is
there. The result will be a judicial distortion of our society's debate over
marriage — a debate that can seem in need of our clumsy "help" only to a
member of this institution.

As to that debate: Few public controversies touch an institution so
central to the lives of so many, and few inspire such attendant passion by
good people on all sides. Few public controversies will ever demonstrate so
vividly the beauty of what our Framers gave us, a gift the Court pawns today
to buy its stolen moment in the spotlight: a system of government that
permits us to rule ourselves. Since DOMA's passage, citizens on all sides of
the question have seen victories and they have seen defeats. There have been
plebiscites, legislation, persuasion, and loud voices — in other words,
democracy. Victories in one place
for some, see North Carolina Const., Amdt. 1 (providing that "[m]arriage
between one man and one woman is the only domestic legal union that shall be
valid or recognized in this State") (approved by a popular vote, 61% to 39%
on May 8, 2012),[fn6] are offset by victories in other places for others,
see Maryland Question 6 (establishing "that Maryland's civil marriage laws
allow gay [*2711] and lesbian couples to obtain a civil marriage license") (approved
by a popular vote, 52% to 48%, on November 6, 2012).[fn7] Even in a singleState, the question has come out differently on different occasions. Compare
Maine Question 1 (permitting "the State of Maine to issue marriage licenses
to same-sex couples") (approved by a popular vote, 53% to 47%, on November
6, 2012)[fn8] with Maine Question 1 (rejecting "the new law that lets
same-sex couples [**847] marry") (approved by a popular vote, 53% to 47%, on
November 3, 2009).[fn9]

In the majority's telling, this story is black-and-white: Hate your
neighbor or come along with us. The truth is more complicated. It is hard to
admit that one's political opponents are not monsters, especially in a
struggle like this one, and the challenge in the end proves more than
today's Court can handle. Too bad. A reminder that disagreement over
something so fundamental as marriage can still be politically legitimate
would have been a fit task for what in earlier times was called the judicial
temperament. We might have covered ourselves with honor today, by promising
all sides [***35] of this debate that it was
theirs to settle and that we would respect their resolution. We might have
let the People decide. But that the majority will not do. Some will rejoice
in today's decision, and some will despair at it; that is the nature of a
controversy that matters so much to so many. But the Court has cheated both
sides, robbing the winners of an honest victory, and the losers of the peace
that comes from a fair defeat. We owed both of them better. I dissent.

[fn1] For an even more advanced scavenger hunt, one might search the annals
of Anglo-American law for another "Motion to Dismiss" like the one the
United States filed in District Court: It argued that the court should agree
"with Plaintiff and the United States" and "not dismiss" the complaint.
(Emphasis mine.) Then, having gotten exactly what it asked for, the United
States promptly appealed.

[fn2] There the Justice Department's refusal to defend the legislation was
in accord with its longstanding (and entirely reasonable) practice of
declining to defend legislation that in its view infringes upon Presidential
powers. There is no justification for the Justice Department's abandoning
the law in the present case. The majority opinion makes a point of scolding
the President for his "failure to defend the constitutionality of an Act of
Congress based on a constitutional theory not yet established in judicial
decisions," ante, at 12. But the rebuke is tongue-in-cheek, for the majority
gladly gives the President what he wants. Contrary to all precedent, it
decides this case (and even decides it the way the President wishes) despite
his abandonment of the defense and the consequent absence of a case or
controversy.

[fn3] JUSTICE ALITO attempts to limit his argument by claiming that Congress
is injured (and can therefore appeal) when its statute is held
unconstitutional without Presidential defense, but is not injured when its
statute is held unconstitutional despite Presidential defense. I do not
understand that line. The injury to Congress is the same whether the
President has defended the statute or not. And if the injury is threatened,
why should Congress not be able to participate in the suit from the
beginning, just as the President can? And if having a statute declared
unconstitutional (and therefore inoperative) by a court is an injury, why is
it not an injury when a statute is declared unconstitutional by the
President and rendered inoperative by his consequent failure to enforce it?
Or when the President simply declines to enforce it without opining on its
constitutionality? If it is the inoperativeness that constitutes the injury
— the "impairment of [the legislative] function," as JUSTICE ALITO puts it,
post, at 4 — it should make no difference which of the other two branches
inflicts it, and whether the Constitution is the pretext. A principled and
predictable system of jurisprudence cannot rest upon a shifting concept of
injury, designed to support standing when we would like it. If this Court
agreed with JUSTICE ALITO's distinction, its opinion in Raines v. Byrd,
521 U. S. 811 (1997), which involved an original suit by Members of Congress
challenging an assertedly unconstitutional law, would have been written
quite differently; and JUSTICE ALITO's distinguishing of that case on
grounds quite irrelevant to his theory of standing would have been
unnecessary.

[fn4] Such a suggestion would be impossible, given the Federal Government's
long history of making pronouncements regarding marriage — for example,
conditioning Utah's entry into the Union upon its prohibition of polygamy.
See Act of July 16, 1894, ch. 138, § 3, 28 Stat. 108 ("The constitution [of
Utah]" must provide "perfect toleration of religious sentiment," "Provided,
That polygamous or plural marriages are forever prohibited").

[fn5] Since the Equal Protection Clause technically applies only against the
States, see U. S. Const., Amdt. 14, Bolling and Moreno, dealing with federal
action, relied upon "the equal protection component of the Due Process
Clause of the Fifth Amendment," Moreno, 413 U. S., at 533.

[fn6] North Carolina State Board of Elections, Official Results: Primary
Election of May 8, 2012, Constitutional Amendment.

[fn7] Maryland State Board of Elections, Official 2012 Presidential General
Election Results for All State Questions, Question 06.

Our Nation is engaged in a heated debate about same-sex marriage. That
debate is, at bottom, about the nature of the institution of marriage.
Respondent Edith Windsor, supported by the United States, asks this Court to
intervene in that debate, and although she couches her argument in different
terms, what she seeks is a holding that enshrines in the Constitution a
particular understanding of marriage under which the sex of the partners
makes no difference. The Constitution, however, does not dictate that
choice. It leaves the choice to the people, acting through their elected
representatives at both the federal and state levels. I would therefore hold
that Congress did not violate Windsor's constitutional rights by enacting §
3 of the Defense of Marriage Act (DOMA), 110 Stat. 2419, which defines the
meaning of marriage under federal statutes that either confer upon married
persons certain federal benefits or impose upon them certain federal
obligations.

I

I turn first to the question of standing. In my view, the
United States clearly is not a proper petitioner in this case. The United
States does not ask us to overturn the judgment of the court below or to
alter that judgment in any way. Quite to the contrary, the United States
argues emphatically in favor of the correctness of that judgment. We have
never before reviewed a decision at the sole behest of a party that took
such a position, and to do [*2712] so would be to render an advisory opinion, in
violation of Article III's dictates. For the reasons given in JUSTICE
SCALIA's dissent, I do not find the Court's arguments to the contrary to be
persuasive.

Whether the Bipartisan Legal Advisory Group of the House of
Representatives (BLAG) has standing to petition is a much more difficult
question. It is also a significantly closer question than whether the
intervenors in Hollingsworth v. Perry, ante, p.___[**848] — which the Court also
decides today — have standing to appeal. It is remarkable that the Court has
simultaneously decided that the United States, which "receive[d] all that
[it] ha[d] sought" below, Deposit Guaranty Nat. Bank v. Roper,
445 U. S. 326, 333 (1980), is a proper petitioner in this case but that the
intervenors in Hollingsworth, who represent the party that lost in the lower
court, are not. In my view, both the Hollingsworth intervenors and BLAG have
standing.[fn1]

A party invoking the Court's authority has a sufficient stake to permit it
to appeal when it has "`suffered an injury in fact' that is caused by `the
conduct complained of `and that `will be redressed by a favorable
decision.'" Camreta v. Greene, 563 U. S. ___, ___ (2011) (slip op., at 5)
(quoting Lujan v. Defenders of Wildlife, 504 U. S. 555, 560-561 (1992)). In
the present [***36] case, the House of Representatives, which has authorized BLAG to
represent its interests in this matter,[fn2] suffered just such an injury.

In INS v. Chadha, 462 U. S. 919 (1983), the Court held that the two Houses
of Congress were "proper parties" to file a petition in defense of the
constitutionality of the one-house veto statute, id., at 930, n. 5 (internal
quotation marks omitted). Accordingly, the Court granted and decided
petitions by both the Senate and the House, in addition to the Executive's
petition. Id., at 919, n.*. That the two Houses had standing to petition is
not surprising: The Court of Appeals' decision in Chadha, by holding the
one-house veto to be unconstitutional, had limited Congress' power to
legislate. In discussing Article III standing, the Court suggested that
Congress suffered a similar injury whenever federal legislation it had
passed was struck down, noting that it had "long held that Congress is the
proper party to defend the validity of a statute when an agency of
government, as a defendant charged with enforcing the statute, agrees with
plaintiffs that the statute [*2713] is inapplicable or unconstitutional." Id., at
940.

The United States attempts to distinguish Chadha on
the ground that it "involved an unusual statute that vested the House and
the Senate themselves each with special procedural rights — namely, the
right effectively [**849] to veto Executive action." Brief for United States
(jurisdiction) 36. But that is a distinction without a difference: just as
the Court of Appeals decision that the Chadha Court affirmed impaired
Congress' power by striking down the one-house veto, so the Second Circuit's
decision here impairs Congress' legislative power by striking down an Act of
Congress. The United States has not explained why the fact that the
impairment at issue in Chadha was "special" or "procedural" has any
relevance to whether Congress suffered an injury. Indeed, because
legislating is Congress' central function, any impairment of that function
is a more grievous injury than the impairment of a procedural add-on.

The Court's decision in Coleman v. Miller, 307 U. S. 433 (1939), bolsters
this conclusion. In Coleman, we held that a group of state senators had
standing to challenge a lower court decision approving the procedures used
to ratify an amendment to the Federal Constitution. We reasoned that the
senators' votes — which would otherwise have carried the day — were
nullified by that action. See id., at 438 ("Here, the plaintiffs include
twenty senators, whose votes against ratification have been overridden and
virtually held for naught although if they are right in their contentions
their votes would have been sufficient to defeat ratification. We think that
these senators have a plain, direct and adequate interest in maintaining the
effectiveness of their votes"); id., at 446 ("[W]e find no departure from
principle in recognizing in the instant case that at least the twenty
senators whose votes, if their contention were sustained, would have been
sufficient to defeat the resolution ratifying the proposed constitutional
amendment, have an interest [***37] in the controversy which, treated by the state
court as a basis for entertaining and
deciding the federal questions, is sufficient to give the Court jurisdiction
to review that decision"). By striking down § 3 of DOMA as unconstitutional,
the Second Circuit effectively "held for naught" an Act of Congress. Just as
the state-senator-petitioners in Coleman were necessary parties to the
amendment's ratification, the House of Representatives was a necessary party
to DOMA's passage; indeed, the House's vote would have been sufficient to
prevent DOMA's repeal if the Court had not chosen to execute that repeal
judicially.

Both the United States and the Court-appointed amicus err in arguing that
Raines v. Byrd, 521 U. S. 811 (1997), is to the contrary. In that case, the
Court held that Members of Congress who had voted "nay" to the Line Item
Veto Act did not have standing to challenge that statute in federal court.
Raines is inapposite for two reasons. First, Raines dealt with individual
Members of Congress and specifically pointed to the individual Members' lack
of institutional endorsement as a sign of their standing problem: "We attach
some importance to the fact that appellees have not been authorized to
represent their respective Houses of Congress in this action, and indeed
both Houses actively oppose their suit." Id., at 829; see also ibid., n.10
(citing cases to the effect that "members of collegial bodies do not have
standing to perfect an appeal [**850] the body itself has declined to take"
(internal quotation marks omitted)).
[*2714]

Second, the Members in Raines — unlike the state senators in Coleman —
were not the pivotal figures whose votes would have caused the Act to fail
absent some challenged action. Indeed, it is telling that Raines
characterized Coleman as standing "for the proposition that legislators
whose votes would have been sufficient to defeat (or enact) a specific
legislative Act have standing to sue if that legislative action goes into
effect (or does not go into effect), on the ground that their votes have
been completely nullified." 521 U. S., at 823.
Here, by contrast, passage by the House was needed for DOMA to become law.
U. S. Const., Art. I, § 7 (bicameralism and presentment requirements for
legislation).

I appreciate the argument that the Constitution confers on the President
alone the authority to defend federal law in litigation, but in my view, as
I have explained, that argument is contrary to the Court's holding in
Chadha, and it is certainly contrary to the Chadha Court's endorsement of
the principle that "Congress is the proper party to defend the validity of a
statute" when the Executive refuses to do so on constitutional grounds.
462 U. S., at 940. See also 2 U. S. C. § 288h(7) (Senate Legal Counsel shall
defend the constitutionality of Acts of Congress when placed in issue).[fn3]
Accordingly, in the narrow category of cases in which a court strikes down
an Act of Congress and the Executive declines to defend the Act, Congress
both has standing to defend the undefended statute and is a proper party to
do so.

II

Windsor and the United States argue that § 3 of DOMA violates the equal
protection principles that [***38] the Court has found in the Fifth Amendment's Due
Process Clause. See Brief for Respondent Windsor (merits) 17-62; Brief for
United States (merits) 16-54; cf. Bolling v. Sharpe, 347 U. S. 497 (1954).
The Court rests its holding on related arguments. See ante, at 24-25.

Same-sex marriage presents a highly emotional and important question of
public policy — but not a difficult question of constitutional law. The
Constitution does not
guarantee the right to enter into a same-sex marriage. Indeed, no provision
of the Constitution speaks to the issue.

The Court has sometimes found the Due Process Clauses to have a
substantive component that guarantees liberties beyond the absence of
physical restraint. And the Court's holding that "DOMA is unconstitutional
as a deprivation of the liberty of the person protected by the Fifth
Amendment of the Constitution," ante, at 25, suggests that substantive due
process may partially underlie the Court's decision today. But it is well
established that any "substantive" component to the Due Process Clause
protects only "those fundamental rights and liberties which are,
objectively, `deeply rooted in this Nation's history and tradition,'"
Washington v. Glucksberg, 521 U. S. 702, 720-721 (1997); [**851]Snyder v.
Massachusetts, 291 U. S. 97, 105 (1934) (referring to fundamental rights as
those that are so "rooted in the traditions and conscience of our people as
to be ranked as fundamental"), as well as "`implicit in the concept of
ordered liberty,' such that `neither liberty nor justice would exist if they
were sacrificed.'" Glucksberg, supra, at 721 (quoting Palko v. Connecticut[*2715],
302 U. S. 319, 325-326 (1937)).

It is beyond dispute that the right to same-sex marriage is not deeply
rooted in this Nation's history and tradition. In this country, no State
permitted same-sex marriage until the Massachusetts Supreme Judicial Court
held in 2003 that limiting marriage to opposite-sex couples violated the
State Constitution. See Goodridge v. Department of Public Health,
440 Mass. 309, 798 N. E. 2d 941. Nor is the right to same-sex marriage
deeply rooted in the traditions of other nations. No country allowed
same-sex couples to marry until the Netherlands did so in 2000.[fn4]

What Windsor and the United States seek, therefore, is not the protection
of a deeply rooted right but the recognition of a very new right, and they
seek this innovation not from a legislative body elected by the people, but
from unelected judges. Faced with such a request, judges have cause for both
caution and humility.

The family is an ancient and universal human institution. Family structure
reflects the characteristics of a civilization, and changes in family
structure and in the popular understanding of marriage and the family can
have profound effects. Past changes in the understanding of marriage — for
example, the gradual ascendance of the idea that romantic love is a
prerequisite to marriage — have had far-reaching consequences. But the
process by which such consequences come about is complex, involving the
interaction of numerous factors, and tends to occur over an extended period
of time.

We can expect something similar to take place if same-sex marriage becomes
widely [***39] accepted. The long-term consequences of this change are not now known
and are unlikely to be ascertainable for some time to come.[fn5] There are
those who think that allowing same-sex marriage will seriously undermine the
institution of marriage. See, e.g., S. Girgis, R. Anderson, & R. George,
What is Marriage? Man and Woman: A Defense 53-58 (2012); Finnis, Marriage: A
Basic and Exigent Good, 91 The Monist 388, 398 (2008).[fn6]
Others think [*2716] that recognition of [**852] same-sex marriage will fortify a now-shaky
institution. See, e.g., A. Sullivan, Virtually Normal: An Argument About
Homosexuality 202-203 (1996); J. Rauch, Gay Marriage: Why It Is Good for
Gays, Good for Straights, and Good for America 94 (2004).

At present, no one — including social scientists, philosophers, and
historians — can predict with any certainty what the long-term ramifications
of widespread acceptance of same-sex marriage will be. And judges are
certainly not equipped to make such an assessment. The Members of this Court
have the authority and the responsibility to interpret and apply the
Constitution. Thus, if the Constitution contained a provision guaranteeing
the right to marry a person of the same sex, it would be our duty to enforce
that right. But the Constitution simply does not speak to the issue of
same-sex marriage. In our system of government, ultimate sovereignty rests
with the people, and the people have the right to control their own destiny.
Any change on a question so fundamental should be made by the people through
their elected officials.

III

Perhaps because they cannot show that same-sex marriage is a fundamental
right under our Constitution, Windsor and the United States couch their
arguments in equal protection terms. They argue that § 3 of DOMA
discriminates on the basis of sexual orientation, that classifications based
on sexual orientation should trigger a form of "heightened" scrutiny, and
that § 3 cannot survive such scrutiny. They further maintain that the
governmental interests that § 3 purports to serve are not sufficiently
important and that it has not been adequately shown that § 3 serves those
interests very well. The Court's holding, too, seems to rest on "the equal
protection guarantee of the Fourteenth Amendment," ante, at 25 — although
the Court is careful not to adopt most of Windsor's and the United States'
argument.

In my view, the approach that Windsor and the United States advocate is
misguided. Our equal protection framework, upon which Windsor and the United
States rely, is a judicial construct that provides a useful mechanism for
analyzing a certain universe of equal protection cases. But that framework
is ill suited for use in evaluating the constitutionality of laws based on
the traditional understanding of marriage, which fundamentally turn on
what marriage is.
[**853]

Underlying our equal protection jurisprudence is the central notion that
"[a] classification `must be reasonable, not arbitrary, and must rest upon
some ground of difference having a fair and substantial relation to the
object of the legislation, so that all persons similarly circumstanced shall
be [***40] treated alike.'" Reed v. Reed, 404 U. S. 71, 76 (1971) (quoting F. S.Royter Guano Co. v. Virginia, 253 U. S. 412, 415 (1920)). The modern tiers
of scrutiny — on which Windsor and the United States rely so heavily — are a
heuristic to help judges determine when classifications have that "fair and
substantial relation to the object of the legislation." Reed, supra, at 76.
[*2717]

So, for example, those classifications subject to strict scrutiny — i.e.,
classifications that must be "narrowly tailored" to achieve a "compelling"
government interest, Parents Involved in Community Schools v. Seattle SchoolDist. No. 1, 551 U. S. 701, 720 (2007) (internal quotation marks omitted) —
are those that are "so seldom relevant to the achievement of any legitimate
state interest that laws grounded in such considerations are deemed to
reflect prejudice and antipathy." Cleburne v. Cleburne Living Center, Inc.,
473 U. S. 432, 440 (1985); cf. id., at 452-453 (Stevens, J., concurring)
("It would be utterly irrational to limit the franchise on the basis of
height or weight; it is equally invalid to limit it on the basis of skin
color. None of these attributes has any bearing at all on the citizen's
willingness or ability to exercise that civil right").

In contrast, those characteristics subject to so-called intermediate
scrutiny — i.e., those classifications that must be "`substantially
related'" to the achievement of "important governmental objective[s],"
United States v. Virginia, 518 U. S. 515, 524 (1996); id., at 567 (SCALIA,
J., dissenting) — are those that are sometimes relevant considerations to be
taken into account by legislators, but "generally provid[e] no sensible
ground for different treatment,"
Cleburne, supra, at 440. For example, the Court has held that statutory rape
laws that criminalize sexual intercourse with a woman under the age of 18
years, but place no similar liability on partners of underage men, are
grounded in the very real distinction that "young men and young women are
not similarly situated with respect to the problems and the risks of sexual
intercourse." Michael M. v. Superior Court, Sonoma Cty., 450 U. S. 464, 471
(1981) (plurality opnion). The plurality reasoned that "[o]nly women may
become pregnant, and they suffer disproportionately the profound physical,
emotional, and psychological consequences of sexual activity." Ibid. In
other contexts, however, the Court has found that classifications based on
gender are "arbitrary," Reed, supra, at 76, and based on "outmoded notions
of the relative capabilities of men and women," Cleburne, supra, at 441, as
when a State provides that a man must always be [**854] preferred to an equally
qualified woman when both seek to administer the estate of a deceased party,
see Reed, supra, at 76-77.

Finally, so-called rational-basis review applies to classifications based
on "distinguishing characteristics relevant to interests the State has the
authority to implement." Cleburne, supra, at 441. We have long recognized
that "the equal protection of the laws must coexist with the practical
necessity that most legislation classifies for one purpose or another, with
resulting disadvantages to various groups or persons." Romer v. Evans,
517 U. S. 620, 631 (1996). As a result, in rational-basis cases, where [***41] the
court does not view the classification at issue as "inherently suspect,"
Adarand Constructors, Inc. v. Peña, 515 U. S. 200, 218 (1995) (internal
quotation marks omitted), "the courts have been very reluctant, as they
should be in our federal system and with our respect for the separation of
powers, to closely scrutinize legislative choices as to whether, how, and to
what extent those interests should
be pursued." Cleburne, supra, at 441-442.

In asking the Court to determine that § 3 of DOMA is subject to and
violates heightened scrutiny, Windsor and the [*2718] United States thus ask us to
rule that the presence of two members of the opposite sex is as rationally
related to marriage as white skin is to voting or a Y-chromosome is to the
ability to administer an estate. That is a striking request and one that
unelected judges should pause before granting. Acceptance of the argument
would cast all those who cling to traditional beliefs about the nature of
marriage in the role of bigots or superstitious fools.

By asking the Court to strike down DOMA as not satisfying some form of
heightened scrutiny, Windsor and the United States are really seeking to
have the Court resolve a debate between two competing views of marriage.

The first and older view, which I will call the "traditional" or
"conjugal" view, sees marriage as an intrinsically opposite-sex institution.
BLAG notes that virtually every culture, including many not influenced by
the Abrahamic religions, has limited marriage to people of the opposite sex.
Brief for Respondent BLAG (merits) 2 (citing Hernandez v. Robles,
7 N. Y. 3d 338, 361, 855 N. E. 2d 1, 8 (2006) ("Until a few decades ago, it
was an accepted truth for almost everyone who ever lived, in any society in
which marriage existed, that there could be marriages only between
participants of different sex")). And BLAG attempts to explain this
phenomenon by arguing that the institution of marriage was created for the
purpose of channeling heterosexual intercourse into a structure that
supports child rearing. Brief for Respondent BLAG 44-46, 49. Others explain
the basis for the institution in more philosophical terms. They argue that
marriage is essentially the solemnizing of a comprehensive, exclusive,
permanent union that is intrinsically ordered to producing new life, even if
it does not always do so. See, e.g., Girgis, Anderson, & George, What is
Marriage? Man and Woman:
A Defense, at 23-28. While modern cultural changes have weakened the link
between marriage and procreation in the popular mind, there is no doubt
that, throughout human history and across many cultures, [**855] marriage has been
viewed as an exclusively opposite-sex institution and as one inextricably
linked to procreation and biological kinship.

The other, newer view is what I will call the "consent-based" vision of
marriage, a vision that primarily defines marriage as the solemnization of
mutual commitment — marked by strong emotional attachment and sexual
at-traction — between two persons. At least as it applies to heterosexual
couples, this view of marriage now plays a very prominent role in the
popular understanding of the [***42] institution. Indeed, our popular culture is
infused with this understanding of marriage. Proponents of same-sex marriage
argue that because gender differentiation is not relevant to this vision,
the exclusion of same-sex couples from the institution of marriage is rank
discrimination.

The Constitution does not codify either of these views of marriage
(although I suspect it would have been hard at the time of the adoption of
the Constitution or the Fifth Amendment to find Americans who did not take
the traditional view for granted). The silence of the Constitution on this
question should be enough to end the matter as far as the judiciary is
concerned. Yet, Windsor and the United States implicitly ask us to endorse
the consent-based view of marriage and to reject the traditional view,
thereby arrogating to ourselves the power to decide a question that
philosophers, historians, social scientists, and theologians are better
qualified to explore.[fn7] Because our constitutional
[*2719]
order assigns the resolution of questions of this nature to the people, I
would not presume to enshrine either vision of marriage in our
constitutional jurisprudence.
[**856]

Legislatures, however, have little choice but to decide between the two
views. We have long made clear that neither the political branches of the
Federal Government nor state governments are required to be neutral between
competing visions of the good, provided that the vision of the good that
they adopt is not countermanded by the Constitution. See, e.g., Rust v.
Sullivan, 500 U. S. 173, 192 (1991) ("[T]he government `may make a value
judgment favoring childbirth over abortion'" (quoting Maher v. Rue,
432 U. S. 464, 474 (1977))). Accordingly, both Congress and the States are
entitled to enact laws recognizing either of the two understandings of
marriage. And given the size of government and the degree to which it now
regulates daily life, it seems unlikely that either Congress or the States
could maintain complete neutrality even if they tried assiduously to do so.

Rather than fully embracing the arguments made by Windsor and the United
States, the Court strikes down § 3 of DOMA as a classification not properly
supported by its objectives. The Court reaches this conclusion in part
because it believes that § 3 encroaches upon the States' sovereign
prerogative to define marriage. See ante, at 21-22 ("As the title and
dynamics of the bill indicate, its purpose is to discourage enactment of
state same-sex marriage laws and to restrict the freedom and choice of
couples married under those [*2720] laws if they are enacted. The congressional goal
was `to put a thumb on the scales and influence a state's decision as to how
to shape its own marriage laws'" (quoting Massachusetts v. United StatesDept. of Health and Human Servs., 682 F. 3d 1, 12-13 (CA1 2012))). Indeed,
the Court's ultimate conclusion is that DOMA falls afoul of the Fifth
Amendment because it "singles out a class of persons deemed by a State
entitled to recognition and protection to enhance their own liberty" and
"imposes a disability on the class by refusing to acknowledge a status theState finds to be dignified [***43] and
proper." Ante, at 25 (emphasis added).

To the extent that the Court takes the position that the question of
same-sex marriage should be resolved primarily at the state level, I
wholeheartedly agree. I hope that the Court will ultimately permit the
people of each State to decide this question for themselves. Unless the
Court is willing to allow this to occur, the whiffs of federalism in the
today's opinion of the Court will soon be scattered to the wind.

In any event, § 3 of DOMA, in my view, does not encroach on the
prerogatives of the States, assuming of course that the many federal
statutes affected by DOMA have not already done so. Section 3 does not
prevent any State from recognizing same-sex marriage or from extending to
same-sex couples any right, privilege, benefit, or obligation stemming from
state law. All that § 3 does is to define a class of persons to whom federal
law extends certain special benefits and upon whom federal law imposes
certain special burdens. In these provisions, Congress used marital status
as a way of defining this class — in part, I assume, because it viewed
marriage as a valuable institution to be fostered and in part because it
viewed married couples as comprising a unique type of economic unit that
merits special regulatory treatment. Assuming that Congress has the [**857] power
under the Constitution to enact the laws affected by § 3, Congress has the
power to define the category of persons to whom those laws apply.

***

For these reasons, I would hold that § 3 of DOMA does not violate the
Fifth Amendment. I respectfully dissent.

[fn1] Our precedents make clear that, in order to support our jurisdiction,
BLAG must demonstrate that it had Article III standing in its own right,
quite apart from its status as an intervenor. See Diamond v. Charles,
476 U. S. 54, 68 (1986) ("Although intervenors are considered parties
entitled, among other things, to seek review by this Court, an intervenor's
right to continue a suit in the absence of the party on whose side
intervention was permitted is contingent upon a showing by the intervenor
that he fulfills the requirements of Art. III" (citation omitted));
Arizonans for Official English v. Arizona, 520 U. S. 43, 64 (1997)
("Standing to defend on appeal in the place of an original defendant, no
less than standing to sue, demands that the litigant possess a direct stake
in the outcome" (internal quotation marks omitted)); id., at 65 ("An
intervenor cannot step into the shoes of the original party unless the
intervenor independently fulfills the requirements of Article III" (internal
quotation marks omitted)).

[fn2] H. Res. 5, 113th Cong., 1st Sess., § 4(a)(1)(B) (2013) ("[BLAG]
continues to speak for, and articulates the institutional position of, the
House in all litigation matters in which it appears, including in Windsor v.
United States").

[fn3]Buckley v. Valeo, 424 U. S. 1 (1976), is not to the contrary. The
Court's statements there concerned enforcement, not defense.

[fn5] As sociologists have documented, it sometimes takes decades to
document the effects of social changes — like the sharp rise in divorce
rates following the advent of no-fault divorce — on children and society.
See generally J. Wallerstein, J. Lewis, & S. Blakeslee, The Unexpected
Legacy of Divorce: The 25 Year Landmark Study (2000).

[fn6] Among those holding that position, some deplore and some applaud this
predicted development. Compare, e.g., Wardle, "Multiply and Replenish":
Considering Same-Sex Marriage in Light of State Interests in Marital
Procreation, 24 Harv. J. L. & Pub. Pol'y 771, 799 (2001) ("Culturally, the
legalization of same-sex marriage would send a message that would undermine
the social boundaries relating to marriage and family relations. The
confusion of social roles linked with marriage and parenting would be
tremendous, and the message of `anything goes' in the way of sexual
behavior, procreation, and parenthood would wreak its greatest havoc among
groups of vulnerable individuals who most need the encouragement of bright
line laws and clear social mores concerning procreative responsibility") and
Gallagher, (How) Will Gay Marriage Weaken Marriage as a Social Institution:
A Reply to Andrew Koppelman, 2 U. St. Thomas L. J. 33, 58 (2005) ("If the
idea of marriage really does matter — if society really does need a social
institution that manages opposite-sex attractions in the interests of
children and society — then taking an already weakened social institution,
subjecting it to radical new redefinitions, and hoping that there are no
consequences is probably neither a wise nor a compassionate idea"), with
Brownworth, Something Borrowed, Something Blue: Is Marriage Right for
Queers? in I Do/I Don't: Queers on Marriage 53, 58-59 (G. Wharton & I.
Phillips eds. 2004) (Former President George W. "Bush is correct . . . when
he states that allowing same-sex couples to marry will weaken the
institution of marriage. It most certainly will do so, and that will make
marriage a far better concept than it previously has been") and Willis, Can
Marriage Be Saved? A Forum, The Nation, p. 16 (2004) (celebrating the fact
that "conferring the legitimacy of marriage on homosexual relations will
introduce an implicit revolt against the institution into its very heart").

[fn7] The degree to which this question is intractable to typical judicial
processes of decisionmaking was highlighted by the trial in Hol-lingsworth
v. Perry, ante, p. ___. In that case, the trial judge, after receiving
testimony from some expert witnesses, purported to make "findings of fact"
on such questions as why marriage came to be, Perry v. Schwarzenegger,
704 F. Supp. 2d 921, 958 (ND Cal. 2010) (finding of fact no. 27) ("Marriage
between a man and a woman was traditionally organized based on presumptions
of division of labor along gender lines. Men were seen as suited for certain
types of work and women for others. Women were seen as suited to raise
children and men were seen as suited to provide for the family"), what
marriage is, id., at 961 (finding of fact no. 34) ("Marriage is the state
recognition and approval of a couple's choice to live with each other, to
remain committed to one another and to form a household based on their own
feelings about one another and to join in an economic partnership and
support one another and any dependents"), and the effect legalizing same-sex
marriage would have on opposite-sex marriage, id., at 972 (finding of fact
no. 55) ("Permitting same-sex couples to marry will not affect the number of
opposite-sex couples who marry, divorce, cohabit, have children outside of
marriage or otherwise affect the stability of opposite-sex marriages").

At times, the trial reached the heights of parody, as when the trial judge
questioned his ability to take into account the views of great thinkers of
the past because they were unavailable to testify in person in his
courtroom. See 13 Tr. in No. C 09-2292 VRW (ND Cal.), pp. 3038-3039.

And, if this spectacle were not enough, some professors of constitutional
law have argued that we are bound to accept the trial judge's findings —
including those on major philosophical questions and predictions about the
future — unless they are "clearly erroneous." See Brief for Constitutional
Law and Civil Procedure Professors as Amici Curiae in Hollingsworth v.
Perry, O. T. 2012, No. 12-144, pp. 2-3 ("[T]he district court's factual
findings are compelling and should be given significant weight"); id., at 25
("Under any standard of review, this Court should credit and adopt the trial
court's findings because they result from rigorous and exacting application
of the Federal Rules of Evidence, and are supported by reliable research and
by the unanimous consensus of mainstream social science experts"). Only an
arrogant legal culture that has lost all appreciation of its own limitations
could take such a suggestion seriously.